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The Modern Workplace

The Modern Workplace

Recently, the Supreme Court of the United States issued a decision in Murray v. UBS Securities, LLC holding that whistleblowers are not required to prove their employer acted with “retaliatory intent” to be protected under the federal Sarbanes-Oxley Act of 2002 (“SOX”). Instead, whistleblowers only need to prove that their protected activity was a “contributing factor” in the employer’s adverse personnel action against them.

Congress enacted SOX to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe ...

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Posted in Discrimination

Employers with employees located in the states falling within the jurisdiction of Fifth Circuit federal courts (e.g. Louisiana, Mississippi and Texas) should take note of an important federal appellate ruling impacting Title VII discrimination claims. On August 18, 2023, the U.S. Court of Appeals for the Fifth Circuit, issued a ruling in Hamilton v. Dallas County (Hamilton) that reversed decades of case precedent within the Circuit and changed the requirements for the ”adverse employment action” element of a Title VII discrimination claim to be in line with other federal ...

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The U.S. Department of Labor (“DOL”) announced a final rule revising its guidance on how to analyze whether a worker is properly classified as an employee or independent contractor under the Fair Labor Standards Act (“FLSA”).  The final rule rescinds the DOL’s 2021 independent contractor rule and takes effect on March 11, 2024.

The FLSA requires, among other things, covered employers to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime pay for every hour worked over 40 in a workweek. These FLSA protections do not apply to independent ...

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Employers should be aware of Colorado law changes that may impact their job postings and other practices, including some changes that are likely a welcome roll-back of some prior requirements.  On January 1, 2024, the amendment to Colorado’s Equal Pay for Equal Work Act (the “Act”) took effect. As background, the Act applies to (1) all public and private employers that employ at least one person in Colorado and (2) all employees of those employers. The Act requires covered employers to include certain information in each job posting, including the hourly rate or salary ...

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Posted in Labor & Unions

On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its Final Rule addressing the Standard for Determining Joint Employer Status under the National Labor Relations Act (“NLRA”). The Final Rule rescinds the prior rule enacted in 2020 and expands the scope of joint employment by including indirect control in the joint-employer standard.

The Final Rule establishes that, under the NLRA, two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees and if the entities share or ...

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Posted in Labor & Unions

For decades, the National Labor Relations Board (“NLRB”) has found that secret ballot elections are the best method for determining whether workers want to be represented by a union. A recent memo from the NLRB General Counsel, however, makes it clear that the current Board is intent on making it much easier for unions to win the right to representation without a vote of the employees. The memo, GC 24-01 (issued November 2), explains the Board’s approach following this summer’s decision in the case of Cemex Construction Materials Pacific and International Brotherhood of ...

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As you likely know, the EEO-1 Report is a mandatory annual data collection which requires all private employers with 100 or more employees and all federal contractors (and their applicable subcontractors) with 50 or more employees to submit workforce demographic data, by job category and by sex and race to the Equal Employment Opportunity Commission (EEOC).

For the year 2022, the deadline for the filing of the EEO-1 Report is DECEMBER 5, 2023. The 2022 EEO-1 Report is based upon the filing employer’s workforce for a single pay period during the time frame of October 1, 2022 to December ...

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Posted in Discrimination

On Friday, September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) posted for public inspection its proposed “Enforcement Guidance on Harassment in the Workplace.”  The EEOC previously released proposed guidance on workplace harassment for public comment back in 2017, but the guidance was not finalized.  The updated proposed guidance posted last week reflects recent changes in the law and recent trends, including:

  • The U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII prohibits employment ...
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On August 30, 2023, the U.S. Department of Labor (“DOL”) announced a proposed rule intended to “restore and extend overtime protections to 3.6 million salaried employees.” If finalized, the proposed rule would raise the salary levels that must be paid to certain employees for them to be exempt from overtime pay requirements under the federal Fair Labor Standards Act (“FLSA”). The full Lathrop GPM Client Alert on the subject can be found here.

Specifics of Proposed Rule

The proposed rule, if finalized, would raise the guaranteed weekly salary that must be paid to “white ...

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The answer after the Stericycle ruling is likely “both.” 

As the composition of the NLRB (National Labor Relations Board) changes, the roller coaster continues, making it difficult for businesses – whether private, non-profit, non-union or union and beyond – to draft and implement compliant policies, reduce risk, conduct or oversee investigations, and more. The result of this swing will likely be more confusion for all employees – union or not – as to whether common policies actually comply with the law, and more litigation involving employees who are disciplined for ...

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Posted in Discrimination

The Equal Employment Opportunity Commission (“EEOC”) has released its enforcement and litigation statistics for FY2022. In summary, the EEOC’s data shows that there were 73,485 charges of discrimination filed in FY2022, which represents 12,154 more charges than were filed in FY2021. Of those charges, retaliation continues to be the most frequently cited claim -- accounting for 51.6 percent of all charges filed in FY2022. Race, color and sex discrimination claims increased marginally while religious discrimination claims more than sextupled from the prior fiscal ...

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As we have previously reported, the most recent Minnesota legislative session resulted in a number of new laws that affect employers with Minnesota-based employees. We have issued client alerts about Minnesota’s new law banning noncompete agreements, as well as new and/or expanded laws regarding earned sick and safe time, paid family and medical leave, parental leave, pregnancy accommodation, lactating employees, and recreational adult-use marijuana. But the Minnesota Legislature did not stop there. Additional developments - including an amendment to Minnesota’s ...

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In a memorandum released on May 30, 2023, the National Labor Relations Board (“NRLB”) General Counsel opined that noncompete agreements may violate the federal National Labor Relations Act (“NLRA”). In doing so, the General Counsel joins the Federal Trade Commission and a growing number of states in attacking the ability of employers to use these agreements. 

Section 7 of the NLRA Act protects, among other things, the right of non-management employees to organize and to act together to improve working conditions. The NLRB General Counsel takes the position that noncompete ...

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Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin, requires employers with 15 or more employees to accommodate the sincerely held religious beliefs and practices of applicants and employees unless doing so would impose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. §2000e(j). On Thursday, June 29, 2023, the U.S. Supreme Court issued an opinion that clarified what “undue hardship” means in the Title VII religious accommodation context, raising the bar ...

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For federal government contractors and their applicable subcontractors, your OFCCP Portal registration/certification deadline is now here for 2023 affirmative action plans (AAPs) – it is Thursday, June 29, 2023! The OFCCP has not extended this deadline as of yet and has indicated that, unlike last year, it most likely will not do so this year – so be alert. Previous updates on OFCCP compliance: January 26, 2023; June 24, 2022; January 28, 2022

Regarding the submission of the EEO-1 Report, an annual obligation of federal contractors and their applicable subcontractors, the EEOC ...

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On May 9, 2023, the United States Department of Health and Human Services issued a press release announcing that the federal Public Health Emergency for COVID-19 would expire on May 11, 2023. The Public Health Emergency has been renewed 13 times since it was first issued on January 31, 2020, at a time when there were only six known cases of COVID-19 and no known deaths in the United States. In declaring the end of the Public Health Emergency, the Department of Health and Human Services cited the success of the Biden-Harris Administration in effectively implementing the largest adult ...

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The Pregnant Workers Fairness Act (the “PWFA”) goes into effect on June 27, 2023.  Signed by President Joe Biden last year as part of the Fiscal Year 2023 Omnibus Spending Bill, the PWFA requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will cause the employer an undue hardship. 

Who is a covered employer under the PWFA?

The PWFA covers employers with at least 15 employees, including both private and public sector employers, Congress ...

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The current 2023 Minnesota legislative session has been a whirlwind of activity and may prove to be the most consequential year in recent history for many employers doing business in the state. Below is a summary of proposed new laws and one new law that has already passed – the Crown Act - that employers should pay attention to, as, if passed, they will directly impact compliance obligations and current operating procedures.

Paid Family and Medical Leave

The Minnesota House of Representatives recently approved HF2, a bill that would provide eligible employees with up to 18 weeks of ...

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Several recent internet posts present interesting dichotomies between employer needs and employee wants, resulting in challenges and opportunities in the business world. One post noted:

“In 2023, organizations will continue to face significant challenges: a competitive talent landscape, an exhausted workforce, and pressure to control costs amid a looming economic downturn. How employers respond could determine whether they are an employer of choice.”*

What do employers want in 2023?

Employers want talent and skills that include good leadership qualities, strong work ...

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On March 13, 2023, Governor Pritzker signed the Paid Leave for All Workers Act (the “Act”), which requires nearly all Illinois employers to provide employees up to 40 hours of paid leave annually to be used for any reason. The Act’s paid leave requirements will go into effect on January 1, 2024. Illinois is now the third state to require employers to provide paid time off to employees to be used for any reason, following Maine and Nevada.

Under the Act, Illinois employees are eligible to accrue paid leave at the rate of one hour of paid leave for every 40 hours worked up to 40 hours in a ...

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Posted in Wage & Hour

In a recent opinion (Helix Energy Sols. Grp., Inc. v Hewitt), the Supreme Court held that a highly compensated supervisor paid on a daily-rate basis was not an executive exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement because he was not paid on a salary basis.

Hewitt, an offshore oil rig supervisor, filed the action against his former employer, Helix Energy Solutions Group, seeking overtime pay under the FLSA which guarantees overtime pay to covered employees when they work more than 40 hours in a workweek. Hewitt was paid on a daily-rate basis from 2014 to ...

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A National Labor Relations Board (the Board) decision issued this week served notice on employers that they need to carefully consider the use of confidentiality and non-disparagement provisions in any employment-related separation and release agreements. In an Unfair Labor Practice proceeding, the Board reviewed two specific terms of a separation agreement that had been offered by the employer to several employees who were being terminated. The two terms in issue were (1) a requirement that the employee keep the terms of the agreement confidential and (2) a requirement that the ...

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On February 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued Field Assistance Bulletin No. 2023-1 (FAB) to help employers (1) better understand their wage and hour obligations under the Fair Labor Standards Act (FLSA) with regard to their non-exempt teleworkers; and (2) how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework. Although the FAB does not break new ground or change the FLSA or the FMLA and their regulations, it does provide guidance on the DOL’s enforcement positions going forward.

Highly ...

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Companies with employees working in Colorado must prepare now for that state’s Family & Medical Leave Insurance (“FAMLI”) program, which will provide paid leave to eligible employees for certain qualifying events beginning in 2024. Covered employers will need to register for the FAMLI program and periodically submit certain wage data and required premiums to the State’s FAMLI Division to help fund the program. Some of the important steps for covered employers to take to comply with the new FAMLI Program include the following:

Step 1 – Post the 2023 Program Notice.

Step 2

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In early January, the Federal Trade Commission (FTC) announced a proposed rule that would ban the use of non-compete agreements by employers in the United States. The rule is a proposed, not final, rule and could face a number of legal challenges that might prevent it from taking effect. Therefore, while employers should be aware that major changes may lie ahead, there is still time to plan and prepare.

The FTC’s proposed rule is sweeping. With only limited exceptions, it would retroactively invalidate all existing non-compete agreements between employers and employees and bar ...

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Last Friday, January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) issued its newest Corporate Scheduling Announcement List (affectionately known as CSAL) for applicable supply and service federal contractors and their applicable subcontractors. The OFCCP definition of “federal contractor” is relatively straightforward - generally a single $50,000 contract with a federal agency - but the OFCCP definition of an applicable subcontractor to a federal contractor can be much more subtle in application and could be difficult to ascertain.

The OFCCP ...

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On January 1, 2023, the amendments to the Illinois One Day Rest in Seven Act (“ODRISA”) took effect, and the changes are significant. Employers with one or more employees in Illinois should take note of these new amendments to avoid costly penalties.

New Rest Breaks

The amended ODRISA requires covered employers to provide non-exempt employees with a minimum of 24 hours of rest within every consecutive seven-day period. Prior to January 1, 2023, the ODRISA required employers to provide eligible employees with at least twenty-four consecutive hours of rest in every “calendar ...

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Employers should be aware of recent updates regarding two #MeToo-related federal laws: the Speak Out Act and the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.

The Speak Out Act

President Biden signed the Speak Out Act on December 7, 2022, and the law went into effect immediately.  The Act makes non-disclosure and non-disparagement clauses agreed to prior to a “sexual assault dispute” or “sexual harassment dispute” unenforceable.  In other words, non-disclosure agreements signed as part of an onboarding process for new employees are not ...

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As much of the country wound down from Thanksgiving celebrations with friends, families and everything in between last month, football programs around the country were also recuperating from one of the most anticipated weekends of the season – the historic rivalry weekend which occurs just in time for the Thanksgiving tryptophan to wear off. As an added bonus, it also happened to be that time of year for many college programs when the afternoon football game is followed quickly by a basketball game in the evening. It is, for some sports fans, the “most wonderful time of the year” ...

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As employers increasingly operate in multiple jurisdictions and are allowing more and more employees to work remotely, employers should be mindful that a number of states are passing pay transparency laws.  Employers hiring workers in such states and/or posting positions that permit remote work locations need to be sure that they are aware of and comply with potential pay transparency laws.

The California Transparency Laws

California, which already required employers to disclose salary information to applicants upon reasonable request, has added new pay scale disclosure ...

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It’s that time of year again for holiday parties. Because many companies did not host holiday parties in 2020 or 2021 due to the COVID-19 pandemic and are now returning to in-person events, it’s time to brush up on the best practices for avoiding holiday-related legal claims.

Holiday parties are a wonderful opportunity for team building and increasing morale.  However, there are potential legal issues associated with company holiday parties. The following are some of the legal issues to think about when planning a holiday party:

1. Religious Discrimination: Be careful not to ...

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On October 19, 2022, the Equal Employment Opportunity Commission (“EEOC”) released a new poster that employers must prominently display in the workplace. The new poster replaces an old version, titled “Equal Employment Opportunity is the Law,” which featured important information regarding federal laws prohibiting workplace discrimination embedded in blocks of text that may have been cumbersome and difficult to read. The new poster, entitled simply “Know Your Rights,” contains much of the same information, along with some new updates. 

Perhaps most striking ...

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When was the last time your company’s website underwent a compliance review? Is your website compliant with the Americans with Disabilities Act (“ADA”)? Did you know that your website may be considered a public accommodation under the ADA? These are all questions you should be asking yourself when it comes to your company website. 

Employer websites may be considered public accommodations for public-facing businesses under Title III of the Americans with Disabilities Act (“ADA”). Though the ADA does not explicitly mention websites or mobile applications, it states ...

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The French sociologist Jean Baudrillard once said: “The sad thing about artificial intelligence is that it lacks artifice and therefore intelligence.” While some may view this as a harsh critique of a tool that has improved many facets of modern society, artificial intelligence (“AI”) is not infallible, particularly in the employment context. The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance on employers’ use of artificial intelligence in employment-related decisions, such as applicant screening, hiring, and performance ...

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In June 2022, in S.W. Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022), the Supreme Court weighed in on the scope of arbitration agreements in employment contracts for transportation workers. Saxon, a ramp supervisor at Southwest Airlines who worked loading and unloading cargo from aircrafts, brought a putative class action against Southwest for allegedly violating the Fair Labor Standards Act by not providing ramp workers with overtime compensation despite requiring them to work over forty hours a week. Southwest argued that Saxon was bound by the arbitration provision in Saxon’s ...

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Effective July 1, 2022, employers with at least one employee working in the City of Chicago must provide Chicago-based employees with sexual harassment prevention training. The City’s Human Rights Ordinance now requires one hour of annual training for all employees and a second hour of training for managers/supervisors. In addition, in what appears to be a unique requirement, all employees must also receive one hour of “Bystander Intervention” training.

Bystander Intervention is defined by the City as “safe and positive actions” a person may take to “prevent ...

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Just this month the Supreme Court of the United States issued its decision in Viking River Cruises, Inc. v. Moriana, No. 20-1573, 2022 WL 2135491 (U.S. June 15, 2022), wherein it partially reversed the California Supreme Court’s holding in Iskanian v. CLS Transp. Los Angeles, LLC. The case deals with the controversial Private Attorneys General Act (“PAGA”). California’s Labor and Workforce Development Agency (“LWDA”) is authorized to enforce California’s labor laws; however, because the legislature believed that the LWDA did not have sufficient resources to ...

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The Office of Federal Contract Compliance Programs (OFCCP) announced last December 2021 that covered federal government contractors and their covered subcontractors not only MUST register in the OFCCP’s newly established online portal but also MUST certify their 2022 affirmative action plan (AAP) compliance by JUNE 30, 2022, a date fast approaching!!! The portal opened in February 2022.

The OFCCP portal can be found at  https://contractorportal.dol.gov and guidance for registration and certification in the portal can be found ...

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Posted in Discrimination

Under Title VII of the Civil Rights Act of 1964, an employer may not discriminate against any individual because of the individual’s religion. To comply with this requirement, employers must reasonably accommodate an employee’s sincerely held religious belief and practice, unless doing so would present an undue hardship. The Supreme Court has declined to review two cases where it could have clarified when a religious accommodation is reasonable, and federal appellate courts currently are divided on the issue.

On May 25, 2022, the Third Circuit Court of Appeals joined the ...

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Our Chambers-ranked Labor & Employment team is known for frequently writing and speaking on various employment, workplace and labor-related topics and sharing insights with businesses in different industry sectors. This spring has been no different (and has flown by for us). Here are some highlights we want to make sure you don’t miss:

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Posted in COVID-19

On March 1, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on how best to approach employee accommodation requests for those opposed to employer COVID-19 vaccine requirements because of their religious beliefs. 

As a quick refresher, the EEOC enforces Title VII which prohibits employment discrimination based on religion.  Employers are required to reasonably accommodate applicants and employees who have sincerely held religious beliefs to enable them to perform the essential functions of their jobs and where their beliefs may conflict ...

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I was sitting by my window the other day and noticed how the sun was melting the snow around my house even though the air temperature was cold. For a person living in a northern climate, I see this as a sign of Spring and with it, the return to green grass, flowers, and warmer temps. It also reminds me that the semi-annual ritual of the changing of the clocks for those states that participate in Daylight Savings Time is upon us. Each Spring, we “Spring Ahead” by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each Fall, when Daylight Savings Time ends, we “Fall ...

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One legal issue highlighted by the #metoo movement is the use of arbitration to resolve workplace sexual harassment claims. Some employers require employees to sign agreements at the time of hire, or at some other time before any claim arises, in which both sides agree that any later workplace disputes will be resolved by arbitration and not in court. Because arbitration is a private dispute resolution process, some #metoo advocates have argued that arbitration of sexual harassment claims allows the misdeeds of bad actors to be concealed and, perhaps, facilitates repeat offenses ...

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The federal Occupational Safety and Health Administration (“OSHA”) withdrew its COVID-19 vaccination and testing emergency temporary standard (“ETS”) as of January 26, 2022. The ETS had mandated that employers with 100 or more employees require all employees to get fully vaccinated against COVID-19 or wear face coverings and undergo weekly testing in lieu of vaccination. This action came shortly after the United States Supreme Court stayed the implementation of the ETS. 

Although OSHA has withdrawn the ETS as an emergency temporary standard, it has announced that it ...

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If your organization is a federal government contractor or subcontractor with annual affirmative action plan requirements, you need to be aware of some recent, important developments.

On December 2, 2021, the U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”) issued an announcement introducing its new online contractor “portal.”  The OFCCP describes the “portal” as a platform through which covered federal government contractors and subcontractors must register and then subsequently annually “certify” whether they ...

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As we approach the second anniversary of the first confirmed U.S. case of COVID-19, it is hard to believe that we are two years into this global pandemic. Pre-2020, we likely never imagined we’d use the phrase “unprecedented times” so often, that toilet paper would become the hottest commodity for a time, or that we would contribute to a massive surge in shares of a company called Zoom. For many of us, our work lives changed in a number of ways, one of which being that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) created standards designed to ...

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On December 14, 2021, the EEOC issued new guidance in its COVID-19 technical assistance FAQs, clarifying the circumstances under which COVID-19 may be considered a disability under the Americans with Disabilities Act and the federal Rehabilitation Act. “This update to our COVID-19 information provides an additional resource for employees and employers facing the varied manifestations of COVID-19,” according to EEOC Chair Charlotte A. Burrows. “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces ...

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Many of you saw our Client Alert detailing the requirements of the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 4, 2021.  The ETS applies to employers with 100 employees or more and contains COVID-19 vaccine and/or testing requirements that employers must adopt to minimize the risk of COVID-19 transmission in the workplace.

On November 12, 2021, the United States Court of Appeals for the Fifth Circuit issued a ruling imposing a stay on enforcement of the ETS.  The federal appellate court ordered OSHA to “take no ...

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On October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance yet again. This time, the updates focused on religious accommodations to vaccine mandates under Title VII. 

As background, similar to disability accommodations, employers are required to reasonably accommodate applicants and employees who have sincerely held religious beliefs to enable them to perform the essential functions of their jobs and where their beliefs may conflict with company policy. However, employers have a lower burden than with disability ...

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In its Bostock v. Clayton County, Georgia ruling in June 2020, the U.S. Supreme Court ruled that the prohibition on “sex” discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and/or gender identity. The Bostock ruling raised, but did not decide, the question of whether or not other federal sex discrimination laws, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act, might also inherently prohibit LGBTQ+ discrimination. While the Bostock ruling applies only to Title VII ...

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In the wake of President Biden’s issuance of executive orders requiring that certain employers in the country require COVID-19 vaccinations, some states, like Texas, are taking action to try to block these mandates. This raises the question of whether a state or local government can override federal vaccine requirements.

Federal Vaccine Mandates

On September 9, 2021, President Biden issued executive orders mandating COVID-19 vaccinations for federal employees, employees of certain health care entities, and certain employees of federal contractors and subcontractors ...

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EEOC Updates Guidance on COVID-19 and the ADA

On October 13, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance regarding vaccination and other COVID-related workplace issues, providing businesses with important information as they continue to navigate evolving rules and regulations related to the pandemic. The key development from this round of updates is that the EEOC has now clarified that there is no cap or limit under federal employment discrimination laws enforced by the EEOC on the size of vaccine incentives offered by an employer to ...

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Effective October 1, 2021, Connecticut and Nevada join a chorus of other states – including, for example, California, Colorado, Maryland, Washington and Rhode Island - in implementing new pay disclosure laws.  Employers with employees in Connecticut and Nevada must now disclose wage and/or wage range information at various stages in the hiring process. Connecticut and Nevada’s new pay disclosure laws are designed to level the playing field for applicants, promote pay equity, and promote pay transparency and accountability.

Under Connecticut’s “An Act Concerning the ...

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Last month, on September 2, 2021, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), which enforces federal government contractor requirements, rescinded a Trump-Era notice of intent not to use EEO-1 Component 2 employer pay data to analyze pay equity issues. The OFCCP stated that “it was premature to issue a notice stating OFCCP did not expect to find significant utility in the data.” 84 FR 49354 (September 2, 2021). The EEO-1 Component 2 Data was last collected by the federal government for calendar years 2017 and 2018 and consists of ...

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According to the Centers for Disease Control and Prevention (“CDC”), some individuals may experience post-COVID-19 conditions that involve a wide range of long-term health problems. Per the CDC, these post COVID-19 conditions may be known as “long COVID, long-haul COVID, post-acute COVID-19, long-term effects of COVID, or chronic COVID.” [1] These long-COVID symptoms can include:

  • Difficulty breathing or shortness of breath
  • Tiredness or fatigue
  • Symptoms that get worse after physical or mental activities
  • Difficulty thinking or concentrating (sometimes referred to ...
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Last week, the National Labor Relations Board’s General Counsel directed the Regional Offices to adopt a hardline approach to settling unfair labor practice charges. When an employee or union files an unfair labor practice charge, the Regional office will conduct an investigation. This investigation generally does not allow the employer to see any statements or other evidence provided by the charging party or its witnesses, and, in fact, the employer may not even know the identity of the witnesses. Based on this investigation, and before any hearing, the Regional Office ...

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On August 28, 2021, Missouri joined the growing list of states with legislation aimed at protecting employees who experience domestic or sexual violence. Missouri’s Victims Economic Safety and Security Act (“VESSA”) applies to all employers with at least 20 employees. This new law provides unpaid leave and reasonable safety accommodations to employees who are victims of domestic or sexual violence or who have a family or household member who is a victim of domestic or sexual violence. It also requires employers to give notice of the new law to all current employees and ...

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Deja vu, all over again!!! Last week, the EEOC announced that the deadline to submit and certify 2019 and 2020 EE0-1 Component 1 Reports has been changed – for the umpteenth time. The NEW filing deadline is now Monday, October 25, 2021. And, the EEOC has said (again, as I recall) that this new deadline is the FINAL DEADLINE, that all eligible filers must submit data by this time, and that ”No additional changes to the filing deadline will be made.”  

While we should all take the EEOC at its word, the EEOC also said that this latest extension was due to the “continuing impact of the pandemic ...

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Remember back in May 2021 (May 13 to be exact!) when the CDC dropped bombshell recommendations which outlined what individuals could / could not do based on vaccination status?! Vaccinated individuals rejoiced that they could remove their masks inside and largely dispense with social distancing. Unvaccinated individuals were, of course, less enthused. At that time, OSHA guidance had been to not treat employees differently based on vaccination status. The agency fairly quickly pivoted, affixing this banner to the top of its website on May 18, 2021:  

“The Centers for Disease ...

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Yesterday, on July 27, 2021, the U.S. Center for Disease Control (CDC) issued new COVID-19 guidance, including recommending face masks even for vaccinated people when they are in indoor public settings in geographic areas with substantial or high COVID-19 transmission rates, as mapped from time to time by the CDC. The CDC:

  • Updated guidance for fully vaccinated people given new evidence on the degree to which the B.1.617.2 (Delta) variant is currently circulating in the United States and its high contagion factor.
  • Recommended that fully vaccinated people wear a mask in public ...
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The new federal administration continues to put its stamp on the development and enforcement of wage and hour laws under the Fair Labor Standards Act (FLSA). Recently, the Department of Labor (DOL) issued a new Field Assistance Bulletin (Bulletin 2021), revoking a Trump administration policy relating to the practice of seeking liquidated damages in pre-litigation settlement discussions.

Employers who violate the FLSA provisions relating to minimum wage, overtime compensation, and protections for tipped employees, are liable for the unpaid wages or tips as well as an equal ...

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On June 10, 2021, OSHA released a long-awaited new Emergency Temporary Standard (“ETS”), which establishes new mandatory workplace safety requirements for employers providing healthcare services or healthcare support services. The ETS aims to protect employees from exposure to COVID-19 in the workplace by requiring the following:

  • a COVID-19 plan based on an assessment of COVID-19 hazards;
  • patient screening;
  • transmission-based precautions;
  • continued personal protective equipment (PPE) usage;
  • social distancing while indoors;
  • proper cleaning and disinfecting ...
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The gig economy is an industry that is generally characterized by the prevalence of short-term contracts, freelance work, and indefinite flexible working arrangements. It also usually comes with getting work through some type of online or app-based digital platform. The unifying factor in all of these companies is that they are managing independent contractors and freelancers who have signed up to perform task services for the ultimate end user. From a legal perspective, this is very different from the traditional employee model. In a recent podcast, we explored the impacts of the ...

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The Equal Employment Opportunity Commission (EEOC) has issued an important update to its COVID-19 guidance. Most notably, the update provides long-awaited guidance on mandatory vaccination policies and vaccination incentives—both of which we discussed in earlier blog posts and client alerts

Mandatory Vaccinations

The EEOC’s updated guidance makes clear that, under employment discrimination laws, an employer can require its employees to be vaccinated for COVID-19 before physically entering the workplace, subject to the reasonable accommodation provisions of the ...

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The Centers for Disease Control and Prevention (CDC) recently issued new guidance regarding what activities fully vaccinated people may safely engage in. The CDC stated that fully vaccinated individuals can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal or territorial laws, rules and regulations. In response to the CDC’s new guidance, the Occupational Safety and Health Administration (OSHA) added a statement to its January 2021 guidance stating that OSHA is reviewing the recent CDC guidance and will ...

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As the number of people working remotely decreases while employees start returning to their places of employment, or decide to make home their permanent office, a refresher on the requirements around the compensability of travel time to and from the workplace could prove helpful.

The general rule under the Fair Labor Standards Act (FLSA) is that employees must be compensated whenever they are working. However, pursuant to the Portal-to-Portal Act, time spent traveling to and from the actual place where the employee performs his or her principal activities, or “commuting ...

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Posted in Labor & Unions
Late last week, the National Labor Relations Board(“NLRB”) finished counting the ballots in a highly-publicized attempt by the Retail, Wholesale and Department Store Union to organize an Amazon distribution center in Alabama. The votes were mailed in over a six-week period, a process the NLRB has used to replace in-person voting since the outset of the COVID-19 pandemic. It took several days to count over 3,000 ballots, a count which resulted in a rejection of the union by more than a 2 to 1 margin. 
Despite this seemingly convincing statement by the employees, the result is likely ...
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Posted in Discrimination
The Equal Employment Opportunity Commission (“EEOC”) recently released its enforcement and litigation statistics for FY2020. In summary, the EEOC’s data shows that there were 67,448 charges of discrimination filed in FY2020, which represents 5,227 fewer charges that were filed in FY2019. Of those charges, retaliation continues to be the most frequently cited claim -- accounting for 55.85 percent of all charges filed in FY2020. Disability and color discrimination claims increased marginally while genetic information claims doubled from the prior year. The remaining ...
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Posted in COVID-19, Leave
Here we go again… California has passed new legislation (Senate Bill 95) requiring a larger group of employers to provide paid leave for many more COVID-19-related reasons than previously allowed.
Q: Who must provide the SB 95 leave?

A: California employers (including public entities) with more than 25 employees nationally.

Q. Who is eligible for the SB 95 leave?

A. “Covered employees” is defined as California-based employees who are unable to work or telework for one of the qualifying reasons.[1]
Q. What reasons qualify for the SB 95 leave?
A. There are more qualifying reasons ...
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An EEO-1 Report must be submitted by all private sector employers with at least 100 employees, or federal contractors with 50 or more employees. This submission has been required for over a half century. Because of the pandemic, the due dates for the submission of the 2019 and 2020 EEO-1 Reports were suspended by the EEOC until March 31, 2021.

Earlier this year the EEOC announced that the EEOC’s collection site for the submission (the EEOC On Line Filing System) will open in April 2021 for an eligible employer’s submission of both the 2019 and 2020 EEO-1 Component 1 workforce ...

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Posted in COVID-19

On Thursday, March 11, 2021, President Biden signed an historic $1.9 Trillion COVID-19 Relief Package known as the American Rescue Plan Act. You may be (rightfully) thinking, “wow, that’s a lot of money, what’s in it for me?!” In fact, many Americans will receive direct stimulus checks aimed at helping to offset widespread economic strain caused by the pandemic. Whether you use the money to pay overdue bills or towards a new car is up to you, and either way the economy will theoretically be improved. In addition to the personal funds the federal government is sending to millions ...

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By now, we are all familiar with the routine employee handbook disclaimer: 

This Handbook is provided for informational purposes only and is not a contract between the Company and any employee. 

Even with such a disclaimer in place, though, employers should be thoughtful when drafting and implementing detailed policies, particularly wage-related policies, as highlighted by a recent case out of Minnesota. In Minnesota, courts have often refused to construe an employee handbook as a contract when it contains a conspicuous contract disclaimer. In Hall v. City of Plainview, though ...

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As we predicted in a blog post earlier this year, the Biden administration has placed a 60-day hold on the U.S. Department of Labors (DOL) final rule on determining when a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA) which was expected to take effect March 8, 2021. The Biden Administration issued a memorandum to various executive agencies, including the DOL, asking that they: (1) not propose or issue any rules until a department or agency head appointed or designated by the Biden Administration reviews and approves the rule; (2) withdraw any ...
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On Wednesday, February 10, the CDC announced that individuals who are fully vaccinated against SARS-CoV-2 do not necessarily have to quarantine following exposure to someone with suspected or confirmed COVID-19.
In addition, businesses have asked the U.S. Equal Opportunity Commission (EEOC) to clarify the types of incentives employers can legally provide employees to encourage them to get COVID-19 vaccinations. Incentives offered by some employers might, for example, include: 
  • Time off from work to get vaccinated, often with pay
  • Incentive bonus (for example, $100)
  • Gift cards
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Last week, the federal Occupational Safety and Health Administration (OSHA) issued new guidance to help employers and employees identify risks of being exposed to and/or contracting COVID-19 in the workplace and to assist in determining appropriate control measures. The guidance is advisory in nature and does not impose new legal requirements on employers, but provides additional information that may be helpful to employers in their efforts to provide a safe and healthful workplace during the COVID-19 pandemic. 
 
The guidance recommends implementing a workplace COVID-19 ...
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The beginning of a new year is a good time for employers to consider reviewing and possibly revising any non-compete and confidentiality agreements in place for their workforce or to consider putting such agreements in place. Generally, courts look more favorably upon the enforcement of confidentiality agreements than on non-compete or non-solicitation restrictions and all are subject to state law, as discussed more below. It is also possible that the federal law landscape on non-compete agreements might change significantly under the new administration of President Biden
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It comes as little surprise that the new administration in Washington is contemplating changes to laws and rules affecting employers. Early hints about changes that might be in store began to appear already on Inauguration Day. These included a regulatory freeze issued by the White House in the form of a non-binding memorandum to federal agencies. This freeze, which is aimed at halting pending regulatory changes while the new administration takes time to assess them, may affect the Final Rule on Independent Contractor status about which we wrote in this space on January 14, 2021. We ...
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On January 7, 2021, the U.S. Department of Labor (DOL) published its final rule (Final Rule) setting new standards for determining when a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule takes effect sixty days from its publication in the Federal Register and is, therefore, scheduled to take effect on March 8, 2021. The DOL notes that the Final Rule reaffirms the economic reality test; however, the new test changes the analysis to be used when applying the test.

New Test
The Final Rule implements a five-factor economic reality ...
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With two COVID-19 vaccines already authorized for emergency use in the United States and more likely forthcoming soon, employers are asking whether they can and should require employees to get vaccinated. This alert identifies some of the major issues that employers are likely to face when rolling out policies related to vaccinations. 
Can Employers Require Employees to Get Vaccinated?

Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does ...
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Posted in Labor & Unions
The National Labor Relations Board (NLRB) recently affirmed the decision of an administrative law judge that FDRLST Media, LLC (FDRLST) violated the National Labor Relations Act in June of 2019 when Ben Domenech, publisher of the Federalist, published the following tweet on his personal Twitter handle: FYI @fdrlst first one of you tries to unionize I swear Ill send you back to the salt mine. Domenechs tweet was posted in response to the news of Vox Media Inc. employees walking off the job after demanding a new collective bargaining agreement. FDRLST contended that Domenechs tweet was ...
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With COVID-19 cases surging, employers should take the time to review the federal Occupational Safety & Health Administrations recent guidance document, which was generated based on a review of data from citations issued, many of which were the result of complaints, referrals and fatalities in industries such as hospitals and healthcare, nursing homes and long-term care facilities, and meat/poultry processing plants. OSHA News Release (11/7/2020).

The guidance document identifies the standards that are most frequently cited in coronavirus-related OSHA inspections and ...
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Prior to COVID-19, virtually all union representation elections were conducted through in-person voting, often at the workplace. In mid-April, however, the federal National Labor Relations Board (NLRB) empowered its Regional Directors to exercise their discretion to order mail ballot elections when circumstances warrant. Since then, virtually all such elections have been conducted by mail because of the pandemic. Many of these decisions were challenged, generally by employers arguing that in-person voting can be conducted safely, but those objections have not been ...
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With the holidays fast approaching and employers beginning to think about their employee holiday gatherings, the Centers for Disease Control (CDC) recently issued updated holiday guidance amid the COVID-19 pandemic. While the guidance is not targeted specifically to the workplace, it provides employers insight into the various factors they should consider when planning and hosting in-person company-sponsored events, which include the following:
  • Check the COVID-19 infection rates in your area, which can be accomplished by consulting the applicable state and local health ...
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The federal Occupational Safety and Health Administration (OSHA) recently published additional frequently asked questions and answers (FAQs) regarding the need to report employees in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus. These FAQs reverse OSHAs previously issued guidance that, for cases of COVID-19, the work-related incident triggering reporting requirements was the employees positive diagnosis. Now, the triggering event is the employees exposure to the coronavirus at work.
 
Employers are required under ...
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Many employers have implemented Diversity & Inclusion (D&I) programs over the last few years, often including training on topics such as implicit or unconscious bias. For some employers, those efforts may now be in peril. On September 22, 2020, the White House issued Executive Order 13950 entitled On Combating Race and Sex Stereotyping (EO 13950 or order). The orders stated purpose is to combat offensive and anti-American race and sex stereotyping and scapegoating. Private employers are not covered by EO 13950, but federal contractors and subcontractors (and recipients of ...
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Whether we realize it or not, we all have unconscious biases - even scientists who are trained to overcome them. Events of the last year have riveted our attention not only on a global pandemic, but also on race relations. Addressing this topic is important to us all - in our businesses and beyond. Unconscious bias training helps us understand why we harbor biases, how to avoid bad decision-making associated with those biases and how to promote greater inclusivity. 
The problem with unconscious biases is we don't see them. As Henry Thoreau said, "Many an object is not seen, though it falls ...
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The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Many of the updates to the guidance document are consistent with the EEOCs March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (ADA) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 ...
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Posted in Wage & Hour
A basic tenant of the Fair Labor Standards Act (FLSA) is that employers are required to pay their non-exempt employees for all hours worked. While this seems simple enough, sometimes employees do not record all of their work time. Under the FLSA, employers must pay for time worked if they know or have reason to believe that the work was performed. In other words, employers have a duty to make sure that work is not performed when they do not want it to be performed. Recently, in light of the pandemic, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) highlighting the ...
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Posted in Labor & Unions
Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to engage in protected, concerted activities. Such protected activities often include protesting working conditions that employees find unfair, unsafe, or undesirable. But what happens when these protected statements are coupled with inappropriate outbursts filled with abusive, harassing or profane language? Or worse yet, what if these protected statements are coupled with racist or discriminatory statements? Can employers still discipline employees for their inappropriate behavior ...
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Posted in COVID-19
Across the country, state and local mask orders are becoming more common. For those employers located in Minnesota, for example, a new mask order went into effect on July 25, 2020, pursuant to Minnesota Governor Tim Walzs Executive Order on masks. Under the Order, Minnesotans over the age of five must wear a face covering in indoor businesses and indoor public settings, unless alone. The Executive Order contains specific requirements for businesses, including provisions generally requiring workers to wear a face covering at all times when working indoors, outdoors in situations ...
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The uptick in new state laws prohibiting non-competition agreements with low-wage (and in some cases, not-so-low-wage) workers has remained steady throughout 2020. Most recently, Virginia, Rhode Island and Washington have joined a growing contingent of states prohibiting non-competition agreements with workers who do not meet certain earnings thresholds. For many employers, the earnings thresholds may be higher than expected and the penalties for violations of the new laws may be harsher than expected. This post is intended to provide a brief summary of certain new earnings ...
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We will undoubtedly remember 2020 for reasons completely unrelated to employment law. However, the State of Illinois experienced a few changes that went into effect on January 1, 2020. This post intends to provide a quick reminder of a few of the new requirements facing employers since the start of the new year.
Workplace Transparency Act

Candidly, the Workplace Transparency Act (WTA) deserves a post all its own, but since this is a blog post and not a treatise, I offer a few (but importantly, not all) of the highlights of the new WTA:

  • The WTA expanded the definition of discrimination under ...
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This week, the U.S. Supreme Court affirmed First Amendment protections for religious institutions in the hiring and firing of employees who play an important role in carrying out the institutions religious mission. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court upheld the dismissal of employment discrimination claims brought by two teachers against their Catholic school employers under the ministerial exception, a legal doctrine that prohibits courts from getting involved in employment disputes between religious institutions and their ministerial ...
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Two current developments could provide a boost to union organizing efforts. Even in normal times, a workforce that is unsettled and facing an uncertain future can be fertile ground for a union organizing effort. Employees looking for certainty and stability may be more receptive to a unions promise to solve the problems of the day. Employers should be on higher alert right now, because these are not normal times.  Workplaces may be at greater risk of union organization efforts due to the chaos in the economy caused by the COVID-19 pandemic, coupled with the following two ...

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On June 15, 2020, the United States Supreme Court handed the LGBTQ community a major victory. In Bostock v. Clayton County and companion cases, the Supreme Court held that an employer who terminates an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964.

 

The Courts ruling involved a trio of cases, with each employee filing a lawsuit under Title VII alleging discrimination based on sex. Title VII applies to employers with at least 15 employees in each of 20 or more calendar weeks in the current or preceding calendar year and makes it unlawful ...

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For many, January 1, 2020 was the start of a new decade, full of optimism and hope for the future. As of June 1, 2020, this year has brought troubling times that include fear and pain due to racial injustice, a pandemic, unemployment, and growing isolation. 

Employees across the nation are hurting. Some are grieving the loss of one or more loved ones from COVID-19. Against the backdrop of rampant unemployment, many are anxious about how long they might be employed, looming pay cuts, child care challenges, and the rising cost of food. Combined with intense feelings about injustices and other ...

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On May 18, 2020, the United States Department of Labor (DOL) implemented a final rule arguably giving employers more flexibility in the retail and service industries to exempt certain employees from overtime pay requirements. 

Generally, the Fair Labor Standards Act (FLSA) requires that employers pay employees at an overtime rate for time worked in excess of 40 hours in a workweek, unless the employees are exempt under Sections 7 or 13 of the statute. One of these exemptions applies to employees who work for a retail or service establishment if: (i) the employees regular rate of pay ...

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"The Modern Workplace" has taken on a new meaning during this time when many employees are working from home, social distancing, and, often, balancing increased responsibilities for homeschooling, childcare and caring for older relatives. My modern workplace often includes Zoom meetings while my daughter watches cartoons or plays in the same room. Telephone calls are sometimes interrupted by a request for a snack. I have a friend who starts her workday after her children go to bed and goes to sleep herself around 3:00 a.m., just to get a few hours of sleep before her kids are up again at ...
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Posted in Discrimination
The Equal Employment Opportunity Commission (the EEOC) announced yesterday that, due to the COVID-19 Pandemic, it would suspend the anticipated opening of its 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections. The EEOCs EEO-1 Component 1 data collection process requires an employer to report the number of employees working for a covered business and sort those employees by job category, race, ethnicity, and gender. In turn, the EEOCs EEO-3 data collection process requires race, ethnicity, and gender reporting by local unions and the EEO-5 data ...
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Posted in COVID-19

The COVID-19 pandemic has drastically changed the landscape for all employers. Most have had to lay off or furlough a significant number of employees and institute other cost-cutting measures, such as salary decreases, discontinuation of 401(k) matching programs, and hours reductions. For those still operating, they face the challenge of keeping their employees safe while still meeting their customers demands, priorities that are not always aligned. 

In this environment, labor unions have been fighting to insert themselves into these critical management decisions in the name ...

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Employers have been facing an incredible range of complex and varied issues during the COVID-19 pandemic. Not least among these have been how best to respond lawfully to workers for whom work is available but who are reluctant to work, refuse to be in the workplace, or who may be unavailable because they are sick or have been exposed to the virus. Now, as the nation begins to contemplate a reopening process that will significantly increase the number of open workplaces, these questions will arise with increasing frequency. Making sound decisions about how to respond to employees with ...
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In the continued wake of the COVID-19 pandemic, numerous states have recently taken steps, through either new legislation or executive orders issued by governors, to expand both workers compensation and unemployment benefits in circumstances tied to COVID-19. We highlight Minnesota developments as examples.

Workers Compensation Benefits for Essential Workers:  

Newly enacted legislation in Minnesota creates a presumption of workers compensation coverage for various categories of workers who contract COVID-19. Categories of covered workers include first responders ...
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We know that we are all feeling a bit overwhelmed by the fast-pace of information being circulated about employment related COVID-19 issues and laws. In an effort to help you organize and retain COVID-19 information in a concise way, you will find links below to each of the Employment Alerts, Blog Posts, and Webinars by Lathrop GPM on COVID-19 employment issues. We will continue to keep you up to date with Alerts and blog posts as the various federal and state agencies issues new laws, regulations, and answers to the questions posed by employers. Please check here on the Modern Workplace ...
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Public health officials and business leaders are grappling with how to respond to the increasing number of presumptive and confirmed cases of COVID-19 across the United States. Seattle has closed public schools for two weeks in light of coronavirus and banned large gatherings, including sporting events. This week, many higher education institutions, including the University of Minnesota, Duke University, Georgetown, and the University of Notre Dame, canceled in-person classes and announced that they are temporarily switching to an online learning environment. Nationally ...

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Posted in Discrimination
After a surge of unorthodox flight companions ranging from pigs, to squirrels, and even a peacock the U.S. Department of Transportation recently announced a proposed rule that would allow only specially trained emotional support dogs to qualify as service animals and to fly, free of charge, on domestic flights. This proposed rule change comes after multiple complaints from flight attendants, fellow passengers, and advocacy groups about the rise in untrained animals aboard domestic flights and the impact on others on flights. Such complaints have included allergies, safety ...
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Posted in Wage & Hour

Last week, the Minnesota Supreme Court issued a ruling that upheld the City of Minneapoliss $15 per hour minimum wage ordinance. Graco, Inc. sued the City over the ordinance back in 2017, arguing that the state of Minnesotas lower minimum wage law preempted the Minneapolis ordinance and seeking a permanent injunction against the ordinances enforcement. In a unanimous decision issued last Wednesday, the Minnesota Supreme Court held that the state legislature did not intend to occupy the field of minimum-wage rates. The Court also held that the City ordinance was valid, because it ...
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On January 12, 2020, the U.S. Department of Labor (DOL) published its final rule regarding joint-employer status under the Fair Labor Standards Act (FLSA), the federal wage and hour law. This final rule provides a more employer-friendly joint employer liability standard than previous guidance issued by the DOL under the Obama administration.


In recent years, many employment lawsuits have been brought against entities that do not technically employ the workers bringing the employment-related claims, but may exert some level of control or influence over their employment (such as ...
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Posted in Wage & Hour

Employers should be aware that the start of the New Year ushered in changes to federal, state and local government wage and hour laws. Some of those changes include the following:

  • The minimum salary for executive, administrative and professional employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) has increased from $455 to $684 per week ($35,568 per year). 
  • The annual compensation now required to meet the exemption under the FLSA for highly compensated employees has been raised to $107,432.
  • Several states increased the state ...
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Happy Thanksgiving! With the holiday season upon us, we wanted to give you a quick refresher on some tricky workplace issues that are common this time of year.


Holiday Parties


While holiday parties can increase morale and provide an opportunity for team building, without planning and forethought, holiday parties can cause human resources issues that will follow you well into the new year.


Wage and Hour Issues


If you require non-exempt employees to attend a holiday party, you must compensate them for the time they spend there. If the party occurs during normal work hours, non-exempt ...
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As Thanksgiving and the holiday season approaches, companies often look for ways to contribute to charitable causes within their communities. One way they might accomplish this worthwhile endeavor is by creating and encouraging their employees to participate in formal volunteer opportunities. This is a great way for companies to give back and for individual employees to take a break from the rigors of everyday business life and focus on helping others. Whether employees should be compensated for participating in these volunteer activities, however, is not always clear, and if ...
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The Occupational Safety and Health Administration (OSHA) recenty rolled out programs and publications aimed at encouraging employers to focus on programs related to safety on the roadways.


In its Guidelines for Employers to ReduceMotor Vehicle Crashes publication (Guidelines), OSHA states that every 12 minutes someone dies in a motor vehicle crash, every 10 seconds an injury occurs, and every five seconds a crash occurs. The Guidelines point out that many of these incidents occur during the workday or commute to and from work.


Employers feel the impact of employee motor vehicle ...
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The Supreme Court recently heard oral argument in a series of cases that will determine whether federal employment discrimination protection extends to sexual orientation and gender identity. The Courts decisions in the cases could have a far-reaching impact on employers nationwide.


Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex and national origin. At issue in the trio of cases currently before the Court is whether sex applies to sexual orientation and gender identity. If it does, gay, lesbian, and transgender ...
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Posted in Wage & Hour
Employers should be aware that an amendment to the Federal Fair Labor Standards Act (FLSA) will increase the salary level threshold for the white-collar employee exemption from overtime pay commencing January 1, 2020. The white-collar exemption generally applies to executive, administrative, and professional job positions, as defined under the FLSA. A final rule was issued by the federal Department of Labor (DOL) on September 24, 2019, which increases the white-collar exemption salary level from the current level of $455.00 per week to $684.00 per week (which computes to ...
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A note of caution to Minnesota-based employers federal enforcement of the Fair Labor Standards Act (FLSA) should not be your only concern when drafting employee compensation plans; the Minnesota Department of Labor and Industry is actively auditing employers in search of those avoiding their overtime requirements under the Minnesota Fair Labor Standards Act (MFLSA). This past Wednesday, the Minnesota Supreme Court upheld a million dollar compliance order issued by the Department against an employer utilizing split-day compensation plans. The court heldthat an employer must ...
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Posted in Labor & Unions


The National Labor Relations Board (NLRB or the Board) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employers premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employers property when such activity would significantly interfere with the employers use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have ...
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Posted in Discrimination

The deadline for employers with annual EEO-1 reporting requirements to submit Component 2 pay data is just over a month away. Employers must file 2017 and 2018 Component 2 compensation data by September 30, 2019.


With the deadline approaching, the Equal Employment Opportunity Commission (EEOC) has released guidance to filing employers through answers to Frequently Asked Questions. Among other issues, the EEOC addressed reporting non-binary gender employees. Previously, the EEOC required an employer to list an employees gender for EEO-1 reporting as male or female. The EEOC ...
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Posted in Wage & Hour

As part of its ongoing efforts to assist employers in understanding their responsibilities under federal employment law, the Wage and Hour Division of the U.S. Department of Labor recently added publically available presentations to its website.  The presentationscover topics under the Fair Labor Standards Act, such as wage and hour requirements, child labor requirements, and an employers responsibilities to provide rest breaks and proper facilities for nursing mothers.


During the past year the Department of Labor has added other content to its online materials including the ...
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Posted in Leave, Wage & Hour

The Minneapolis City Council adopted a new Wage Theft ordinance on August 8 that adds requirements on top of those in the new Minnesota Wage Theft law that became effective July 1. The city ordinance will be effective January 1, 2020, and will require employers to satisfy the citys wage theft requirements for all employees who work at least 80 hours in a year within the geographical boundaries of Minneapolis, regardless of the location of the employer. Violations of the ordinance subject an employer to a variety of damages, costs, and penalties.

New Information Requirements for ...
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As we discussed in prior posts (MinnesotasNew Wage Theft Law: Are You Prepared? and Minneapolis Wants a Piece of the Wage Theft Pie), Minnesotas 2019 legislature passed expansive new wage theft protections for employees. Most of the new laws provisions became effective July 1. The new criminal penalties for intentional wage theft are effective August 1. While the new law contains numerous significant changes to wage-related notice and recordkeeping requirements, payment of commissions and bonuses is also affected and deserves an employers close attention to achieve compliance ...
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Posted in Wage & Hour

On the heels of the new Minnesota state wage theft law, which went into effect on July 1st, the Minneapolis City Council has proposed a city wage theft ordinance. The proposed Minneapolis ordinance mirrors the new state law in many respects, but includes some additional requirements. The Citys ordinance would require employers to put all pay agreements in writing and provide regular written or electronic earnings statements to workers. The proposal also includes a streamlined resolution process for wage disputes that does not require an employee to have an attorney and creates a ...
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Posted in Discrimination

Last month, the Seventh Circuit (which has jurisdiction over appeals from federal district courts in Illinois, Indiana, and Wisconsin) decided two cases with claims under the Americans with Disabilities Act (ADA). In one case, the Seventh Circuit joined multiple other circuits in holding that obesity, on its own, is not a protected disability under the ADA. In the other, however, the Seventh Circuit revived claims of an employee who alleges he was discriminated against due to his alcoholism.


Richardson v. Chicago Transit Authority


During an examination of his fitness to return to ...
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Posted in Wage & Hour

Governor Tim Walz recently signed into law expansive new wage theft protections for employees that will go into effect on July 1. The new law significantly changes a number of employer wage-related requirements. It also includes increased civil enforcement penalties, as well as new criminal penalties for intentional wage theft. The major requirements of the law are summarized below:


Earning Statements


The law requires that employers include additional information in the earning statements provided to employees at the end of each pay period. Employers must now include 1) the rate ...
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Posted in Discrimination

On Monday, the U.S. Supreme Court unanimously held that Title VIIs requirement that claimants exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) before suing is not jurisdictional. The decision, issued in Fort Bend County v. Davis, means that an employer that fails to timely assert a failure to exhaust affirmative defense to a lawsuit waives the ability to later seek dismissal of the suit on this ground. As a result of the Courts ruling, employers need to be vigilant in timely asserting any failure to exhaust defense at the ...
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Although the recently completed 2019 regular session of the Minnesota Legislature included a significant number of bills on various employment-related topics, in the end, the Legislature passed very few such bills. The future fates of those bills are quite unclear at this time. As of the close of the regular legislative session, numerous employment-related bills were still active, in either one or both legislative bodies, touching on a variety of significant topics, including:

  • Paid leave (generally).
  • Medical leave.
  • Family leave.
  • Work shift scheduling requirements.
  • Wage theft ...
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Two recent developments have occurred in the seemingly constant struggle regarding the classification of independent contractors versus employees. The developments are examples of two very divergent paths that are being taken by various governmental entities and administrations. Some are tightening the requirements for independent contractor status. Others, however, are creating a more business-friendly loosened standard.


On Monday, April 29, 2019, the Wage and Hour Division of the United States Department of Labor (DOL) issued an opinion letter (Opinion Letter ...
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Posted in Discrimination

Pursuant to an April 25 court order, employers with annual EEO-1 reporting requirements will now have until September 30, 2019 to provide the new Component 2 pay data.


Background


As we discussed in our recent update, the Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race, gender, ethnicity, and job ...
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On April 9, 2019, the New York City Council passed a city ordinance that prohibits employers from requiring applicants to submit to drug tests for marijuana. The citys Mayor is expected to sign the ordinance in the next few weeks and it would take effect one year after it is signed into law. Importantly, the ordinance only applies to job applicantsit does not apply to current employees. This is the first law within the U.S. to prohibit employers from drug testing for marijuana.


While this is certainly uncharted territory, marijuana users should temper their excitement and employers ...
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Posted in Discrimination

Employers with annual EEO-1 reporting requirements can soon expect to have new pay data reporting requirements for 2018. The reporting deadline could be as early as May 31, 2019, but the deadline is more likely to be set for later this year.


Background


The Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race ...
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Posted in Wage & Hour
On March 7, 2019, the U.S. Department of Labor issued its new proposed rule on the white-collar exemptions under the federal Fair Labor Standards Act. The proposed rule (New Rule) sets new proposed parameters for the white-collar exemption salary requirements and would replace the final rule issued in 2016, which was blocked after a Texas court issued a permanent injunction. The New Rule would set the minimum white-collar salary at $679 per week ($35,308 annually) and is expected to become effective in January of 2020. For more information about the proposed New Rule, read our client ...
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The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.


New Yorks Gender Expression Non-Discrimination Act


Employers with New York operations should take heed of New Yorks Gender Expression Non-Discrimination Act (GENDA), which ...
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Posted in Hiring & Firing

The practice of running background checks on prospective and current employees has become commonplace in many industries. Companies should be careful, however, to ensure that their process complies with the hyper-technical requirements of the federal law governing the use of these background checks the Fair Credit Reporting Act (FCRA). Under the FCRA, before an employer may obtain a background check from a third party vendor for a fee, it must make a written disclosure to the subject of the background check. That written disclosure must be a stand-alone document that consists only ...
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Posted in Labor & Unions

Ensuring that an employer has properly designated workers as independent contractors, as opposed to employees, is an important issue. The applicable test and factors to be considered and applied when making this important determination have often changed over time, with yet another significant change being recently adopted by the National Labor Relations Board (NLRB). In a January 25, 2019, decision in SuperShuttle DFW, Inc., the NLRB relaxed the test, making it easier for a worker to qualify as an independent contractor and effectively reversing a more stringent test adopted by ...
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In December of 2018, the 8th Circuit Court of Appeals addressed the interaction between a reasonable accommodation under the Americans with Disabilities Act (ADA) and a work attendance policy holding that unauthorized absences under an attendance policy can be used to terminate an employee for whom accommodations are being made under the ADA. In Lipp v. Cargill Meat Solutions Corporation, the 8th Circuit affirmed dismissal of an employees lawsuit alleging her employer discriminated against her when it failed to accommodate her need for intermittent absences under the ADA and ...
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Posted in Wage & Hour

If you have been following the attempts to change the exempt employee salary rule under the Fair Labor Standards Act (FLSA), you know that it has been a long, involved story that includes a series of court decisions and moves that have changed the trajectory of the story. In other words: a saga. We now have word that the saga is continuing.


The final ruleadopted by the U.S. Department of Labor (DOL) in 2016 would have increased the minimum salary level required for employees to qualify for the executive, administrative, and professional exemptions under the FLSA from $455 per week ($23,660 ...
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There is never a shortage of changes in employment law.  By now, Minnesota employers should be aware that Minnesotas minimum-wage rates changed on January 1, 2019.  For 2019, the states minimum wage is $9.86 an hour for large employers and $8.04 an hour for smaller employers.  As you may recall, large employers are those with annual gross revenues of $500,000 or more. 

Remember, also, that your Minnesota posting needs to be updated. The revised poster pack can be found online at 
www.dli.mn.gov/sites/default/files/pdf/mn_poster_pack.pdfand printed. For federal government ...
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Posted in Health Care

On December 14, 2018, a federal judge for the U.S. District Court for the Northern District of Texas ruled that the Affordable Care Act is invalid. The case before the Court was brought by 20 states, including Texas. The plaintiffs argued that the ACAs individual coverage mandate was no longer constitutional, because the Tax Cuts and Jobs Act of 2017 removed the tax penalty associated with being uninsured. The plaintiffs claimed that, as a result, the individual mandate could no longer be upheld as a proper exercise of Congress taxing power. In addition, the plaintiffs argued that the ...
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Posted in Wage & Hour

To make sure that the most wonderful time of the year stays that way, here is a quick refresher on how employers can sidestep certain employment law minefields that are common to the holiday season.


Religious Issues


December is home to Hanukah, Christmas, Kwanzaa, and Winter Solstice celebrations, among others. For this reason, a host of religious-related obligations can arise for employers under federal and state laws that prohibit religious discrimination and require reasonable religious accommodations.


Requests for Time Off


December is a popular time for religious ...
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Posted in Wage & Hour

After significant debate and discussion over a period of several months, the St. Paul City Council approved a new wage ordinance this week that will require a $15 minimum wage within the city of St. Paul for covered nonexempt workers. The City Council voted unanimously in favor of the wage change and St. Paul Mayor Melvin Carter signed it into law soon after.  


Covered Employers and Phase-In Requirements


Similar to the Minneapolis $15 minimum wage ordinance, the St. Paul ordinance will phase in the $15 minimum wage increase over time, and the wage requirement will apply to all time ...
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Posted in Leave, Wage & Hour

I have been watching the weather carefully, because my family will be doing some tree trimming this weekend. As you can imagine, I was a bit concerned when I heard about potential snowfall. The threat of snow reminded me that inclement weather often results in questions from employers about how to address the related wage and hour issues that arise when they shut down their business for weather or employees are unable to get to work. In preparation for the upcoming winter snowstorm season, I offer the following guidelines:
  • What to Do When You Shut Down Your Business Due to Inclement ...
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If you are an FMLA-covered employer or you conduct employment-related background checks, youll want to take note that federal agencies have issued updated forms that may need to be incorporated into your practices. In September 2018, the U.S. Department of Labor (DOL) issued new model Family and Medical Leave Act (FMLA) certification forms and, that same month, the federal Consumer Finance Protection Bureau (CFPB) updated its Summary of Rights form for use in conducting background checks falling under the federal Fair Credit Reporting Act (FCRA).



New Model FMLA Certification ...
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Posted in Labor & Unions

Joint employer liability under the National Labor Relations Act (NLRA) has been a hot topic in recent years, because the NLRA standard has been in flux and joint employer status can be a significant issue for employers. For example, under the NLRA, a joint employer may be required to bargain with a union representing jointly employed workers. In addition, a joint employer can be subject to joint and several liability for an unfair labor practice by the other joint employer and can face labor picketing that would otherwise be unlawful.

In August 2015, the National Labor Relations Board ...
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Posted in Leave

With the midterm elections less than a month away, it is a good time for employers to refresh on the laws related to employee voting leave. In these contentious political times, employers may see an uptick in employee voting absences on Election Day and preparing in advance can minimize business disruptions.

Many states have laws that entitle employees to take reasonable time off on election days to vote. For example, employees in Minnesota have a right to paid time off to vote. On election day, every Minnesota employee that is eligible to vote may be absent from work for the time necessary ...
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Posted in Discrimination

In the midst of the #MeToo movement, the wave of proposed and actual changes to state sexual harassment laws is continuing. Earlier this year, we posted on a proposed change to Minnesotas sexual harassment law that did not pass, but, as proposed, was intended to lower the legal standard for proving actionable sexual harassment in Minnesota. Now, California is pursuing a similar goal. Late last month, the California (CA) legislature passed a bill, SB 1300, that could have a significant impact on the ways in which employers need to seek to prevent and to respond to potential sexual ...
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The U.S. Department of Labor (DOL) has been busy. It recently issuedsix new opinion letters on various compliance issues. As described below, four of the letters involve the federal Fair Labor Standards Act (FLSA) and two of the letters involve the federal Family and Medical Leave Act (FMLA). While DOL opinion letters are issued in response to a particular employers submission of a question to the DOL, employers that rely on a DOL opinion letter in setting their practices have a legal safe harbor defense if faced with, as applicable, a FLSA or FMLA legal challenge. That being said, courts ...
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Posted in Education

Recent college graduates (and some not-so-recent ones as well) are often saddled with student debt to the point that they do not feel like they can afford more than debt service, rent, and living expenses. Certainly, they dont always feel they can afford 401(k) plan contributions. That means that, in many cases, the recent grads are leaving an important piece of compensation on the tableif you dont contribute to the 401(k) plan, you also miss out on the employer match.


And yet, 401(k) and matching contributions are particularly valuable when one is new in their career. The younger you are ...
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Several Members of Congress have introduced competing bills related to paid leave and flexible work schedules. The proposals have sparked debate at the federal level about whether and how to require paid family leave, paid sick time, and flexible scheduling.


The Economic Security for New Parents Act

The Economic Security for New Parents Act would give workers at least two months off at about two-thirds of their regular salary in order to care for newborn or newly adopted children. The workers would fund the bill themselves by deferring Social Security benefits for several months ...
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In the past week, I have been involved in two situations in which an employer received a cease and desist letter from a potential competitor. The employers had hired employees away from the potential competitors and were then notified by the potential competitors that the employees were subject to various restrictive covenant obligations. The potential competitors letters made various demands regarding the restrictive covenants and restrictions to be placed on the employees activities.

As many of you know, restrictive covenants prevent employees from engaging in various types ...
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In the #MeToo Era, employers who are focused on proactive sexual harassment prevention and response measures should also be mindful of other aspects of gender equity, such as pay equity. The Wall Street Journal recently reportedthat the U.S. Equal Employment Opportunity Commission (EEOC) is investigating Uber for potential gender discrimination in hiring and in its pay practices. The investigation is in line with the EEOCs 2017-2021 Strategic Enforcement Plan, which included a focus on equal pay protections as a strategic priority.


Uber is just one of a number of companies facing ...
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Non-competition and non-solicitation agreements can be useful tools for companies trying to protect their key client relationships and confidential information. Enforcing these agreements, however, can sometimes be difficult, given the laws general disfavor of them. A recent Minnesota Court of Appeals case illustrates how a thoughtfully drafted non-compete can protect a company in the event that a former key employee begins competing with his former company.


In Lapidus v. Lurie LLP, a former name partner of a well-known Minneapolis accounting firm was found to have solicited ...
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Posted in Leave

The City of Duluth, Minnesota recently became the third major Minnesota city to enact a local law providing eligible employees with paid leave for sick or safe time absences. On May 29, 2018, the Duluth City Council adopted Ordinance No. 10571 (the Ordinance), which establishes minimum standards for earned sick and safe time leave. The Ordinance is set to take effect on January 1, 2020. 


Covered Employers and Employees


The Ordinance is written to apply to employers with five or more employees nationwideregardless of where those employees are located. Employee eligibility, however ...
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In a highly anticipated 5-4 decision, in which Justice Gorsuch cast the deciding vote, the U.S. Supreme Court overruled its own previous case and held today that a labor union may not require employees in the public sector to pay for its services. The decision, Janus v. AFSCME Council 31, may significantly weaken unions operating in both the public and private sectors and throw labor relations between government workers, their employers, and their unions into turmoil.


Until now, the Courts 1977 decision in Abood v. Detroit Bd. of Ed. had permitted public sector unions to compel payment ...
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Earlier this month, the U.S. Supreme Court addressed whether, after denial of class certification, a putative class member can file a new class action after the applicable statute of limitations has expired, as opposed to joining an existing case or pursuing an individual lawsuit. The Court held, in China Agritech, that this is not allowed, creating potentially significant ramifications for employers. Had the Court ruled the other way, claimants who were unsuccessful in obtaining class certification might have had the ability to perpetually file new class actions, one after the ...
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Posted in Labor & Unions
The Chair of the National Labor Relations Board (NLRB), John Ring, confirmed on June 5 that the NLRB will engage in formal notice-and-comment rulemaking on the subject of joint employers, about which we have written many times (1, 2, 3, 4, 5). Rings announcement was made in a letter to three Democratic senators who had written to him expressing concern that the NLRB was contemplating formal rulemaking on the joint employer issue. Such rulemaking is rare for the NLRB. Candor requires me to inform you, wrote Ring, that the NLRB is no longer merely considering joint-employer rulemaking. A ...
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Posted in Discrimination

As our readers know, the Americans with Disabilities Act (ADA) addresses both physical and mental health disabilities of employees. Under the ADA, employers with 15 or more employees may not discriminate against an employee or applicant on the basis of a qualifying disability. In addition, in certain circumstances, the ADA requires employers to provide a reasonable accommodation to enable the employee or applicant to do the essential functions of the job.


Recently, the Equal Opportunity Commission (EEOC) issued two new publications relating to mental health conditions under ...
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In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the companys tip policies, and the managements treatment of employees.


The case arose after an employee wrote an email upon her resignation complaining about managements treatment of employees, tip policies, work schedules, and more ...
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Posted in Wage & Hour

Employers that have operations or contractors working in California, beware. On April 30, 2018, the California Supreme Court issued an opinion establishing a new pro-employee standard in worker misclassification cases arising under California state wage and hour law. The opinion overturned three decades of precedent and will likely lead to more rulings that independent contractors have been misclassified and are actually employees.


California courts had long applied what is known as the Borello test for determining whether an individual is a contractor or employee under ...
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Last week, a bipartisan group of Minnesota legislators introduced legislation that, if enacted, would significantly alter sexual harassment law for Minnesota employers. The proposed legislation would amend the Minnesota Human Rights Act (MHRA) to eliminate the decades-old requirement that sexual harassment be severe or pervasive to be legally actionable. This proposed change comes amidst the #MeToo movement, which has prompted talk around the country about potential changes to harassment law to foster more respectful and nondiscriminatory work environments. The ...
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Tip pooling in the hospitality industry has been affected by a recent act of Congress and a Minnesota class action that have garnered significant attention. The Congressional act will have limited impact on Minnesota employers because they continue to be subject to substantial restrictions on tip pooling under state law. Tip pooling is the practice of sharing tips between front-of-house staff and back-of-house staff. On March 23, 2018, Congress passed a budget reconciliation bill that included a rider amending the federal Fair Labor Standards Act (FLSA) and related tip pooling ...
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Defending a wage and hour class or collective action is one of the most difficult employment law challenges facing companies today. Penalties are steep, attorneys fees are significant, and liability can be hard to avoid. Employers should be mindful, however, that they may also face liability under the National Labor Relations Act (NLRA) if they do not properly respond to collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability that employers may ...
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Although the Trump administration has signaled its intention to shift away from the prior administrations efforts to expand LGBTQ+ equity rights in the workplace, a federal appellate court recently held that discrimination based on an individuals status as transgender or gender-transitioning is prohibited by Title VII of the Civil Rights Act of 1964. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals held that discrimination based on an employees status as transgender or gender-transitioning is prohibited sex discrimination under Title VII. In ...
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On March 6, 2018, the U.S. Department of Labor (DOL) announced a new pilot program, the Payroll Audit Independent Determination (PAID) program. The PAID program encourages employers to self-report inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the DOL, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owedfaster.


The estimated ...
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On Wednesday, Feb. 21, 2018, the Supreme Court issued a ruling that significantly narrows the category of employees who may be protected whistleblowers under the Dodd-Frank Act.1 In a case entitled Digital Realty Trust, Inc. v. Somers, the Court held that Dodd-Franks prohibition on employer retaliation against whistleblowers only covers individuals who made reports of suspected violations of the securities laws to the Securities Exchange Commission (SEC).

Paul Somers was an employee of Digital Realty Trust, a San-Francisco based realty firm, whose employment was ...
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With many laws protecting workers classified as employees and not offering protection for those classified as independent contractors, a workers classification has broad implications for the worker and for the company using the workers services. In the rise of the sharing economy, companies like Uber Technologies, Inc. and Grubhub, Inc. have classified their drivers as independent contractors; and workers have turned to the courts to challenge that classification. 


In the first federal court decision on this issue, a federal magistrate judge in California ruled on February 8 ...
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Lawsuits involving claims for misappropriation of trade secrets are continuing to trend upward, even in an era when litigation as a whole is believed to have decreased. At a time when companies most sensitive confidential and proprietary business information is becoming ever more digitalized and thus easily transportable all employers should maintain vigilance in protecting their crucial business information. Not surprisingly, a significant amount of trade secret litigation involves situations where former employees accessed company information before their ...
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Posted in Leave
The Minneapolis Department of Civil Rights has settled its first case of retaliation under the paid sick-leave ordinance that went into effect on July 1, 2017. The paid sick-leave ordinance requires that employers with six or more employees provide Minneapolis employees with one hour of paid sick leave for every 30 hours worked within Minneapolis. The ordinance applies to full and part time employees, temporary employees, and paid interns. Under the ordinance, retaliation against employees for exercising their sick leave rights is strictly prohibited.

In the recently settled ...
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Last week, in Boswell v. Panera Bread Co., the Eighth Circuit Court of Appeals held that Panera Bread illegally imposed caps on amounts paid to managers under its bonus program. In order to recruit and retain managers, Panera had created a program under which managers were eligible to receive a one-time bonus to be paid five years after the managers signed at-will employment agreements containing the bonus program. In order to receive the bonus, the manager had to be employed as a manager at the time of payment.

However, after a downturn in profits, Panera decided to place a $100,000 cap on ...
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In the midst of the growing Me Too movement, employers may find it more expensive to settle employment claims of sexual harassment or sexual abuse. A provision in the new tax law signed by President Trump on Dec. 22, 2017 (the Tax Cuts and Jobs Act) provides that, effective as of the signing of the law, a business can no longer deduct the costs incurred to settle employment sexual harassment or abuse claims if a nondisclosure agreement is included in the settlement.  This provision was added to the tax law in response to the Me Too movement and growing criticism of the historic practice of ...
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Posted in Discrimination
On the 20th of this month several well-known companies, including T-Mobile, Amazon, and Cox Media Group, were named parties in a class action lawsuit filed in California related to their online hiring practices. The plaintiffs in the lawsuit are seeking class-action status to represent Facebook users age 40 or older who may have been denied the chance to learn about job openings. The action alleges that advertisements were placed on Facebook that restricted who could see the advertisements by age. This new area of attack by the plaintiffs bar targets advertisements on all social ...
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Posted in Labor & Unions
Last week we blogged about which decisions of the Obama-era National Labor Relations Board (NLRB) might be most ripe for reversal under the NLRBs new membership and General Counsel.  This week, on December 1, 2017, we got further insight into those expectations when Peter Robb, the new General Counsel issued a memorandum containing insights into his initial agenda as General Counsel.  The memorandums identification of subjects for special consideration, along with its general tone, provide further strong indications about the likelihood of coming significant policy shifts at the ...
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Posted in Labor & Unions
In September 2017, the U.S. Senate confirmed William J. Emanuel to fill the last vacant seat on the National Labor Relations Board (NLRB). Emanuel joins recent appointee Marvin Kaplan and long-standing member Philip A. Miscimarra to form the first Republican-majority board since 2009. However, these weren't the only significant developments to come to the NLRB this fall. On Nov. 8, 2017, the U.S. Senate confirmed Peter Robb, a management-side labor lawyer, to replace President Obama-appointed Richard Griffin as the NLRB General Counsel. 
While many employers have long awaited ...
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Posted in Discrimination
On Nov. 1, 2017, the Equal Employment Opportunity Commission (EEOC) launched an online intake portal to allow individuals to quickly and directly submit inquiries and intake interview requests to the EEOC. It remains to be seen whether online access to the EEOCs intake and inquiry process will lead to an increase in discrimination charges, but the new reporting mechanism undoubtedly provides potential claimants with easier access to the EEOC.
 
Previously, in order to file a charge with the EEOC, an individual needed to visit an EEOC office in person, visit a state or local fair ...
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The saga of a 2016 Obama administration federal rule, issued under the Fair Labor Standards Act (FLSA), has taken a somewhat surprising turn. The 2016 rule, which was scheduled to be effective December 1, 2016, would have greatly increased the weekly salary threshold for white collar overtime pay exemptions. The federal Department of Labor (DOL) recently filed an appeal in a Texas federal court lawsuit, challenging an August decision by the district court judge that effectively invalidated the Obama administration rule.
We have previously posted several times about the 2016 ...
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Sadly, the concerning news that's recently surfaced about sexual harassment and assault allegations in Hollywood is all too familiar. This year, we've seen a number of high-profile sexual harassment stories go viral involving the ride-sharing, music, Hollywood, and news media industries. These high profile stories should serve as a reminder to employers of the importance of having sound policies and practices in harassment prevention and response. Below are some suggested best practices for employers to consider.
1.  Implement and Effectuate a Sound Policy
 
Employers should ...
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As previously reported, a Hennepin County district court judge ruled earlier this fall in a class action case against Surly Brewingthat an employee tip-pooling agreement made with employer coercion or participation violates Minnesota's wage and hour law. Now, the Minnesota Supreme Court has found that Minnesota's wage and hour law expressly permits a private cause of action for an employee who is discharged for refusing to share gratuities.
 
The Minnesota Supreme Courts ruling was issued this week in Burt v. Rackner, Inc. d/b/a/ Bunnys Bar & Grill. The plaintiff, Todd Burt, alleged ...
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Posted in Wage & Hour
 

The last quarter of the calendar year is often a time when companies are busy with planning and budgeting for the following year. Minnesota employers doing budget planning for 2018 need to keep in mind that the state minimum wage rates will be adjusted as of January 1, 2018.

 
Under Minnesota law, the commissioner of the Department of Labor and Industry is required to determine and announce the inflation-adjusted minimum-wage rate each year by August 31. This year, the change in the price deflator is an increase of 1.56 percent.
 

The new state law rates as of January 1, 2018 will be as follows:
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    Posted in Leave
    This past Monday, September 18th, the Minnesota Court of Appeals upheld a lower courts refusal to enjoin the City of Minneapolis from enforcing its Sick and Safe leave ordinance as to Minneapolis employers while litigation challenging the ordinance proceeds.  The Court of Appeals did, however, affirm the lower courts order prohibiting enforcement of the ordinance as to employers located outside Minneapolis.
    The Minneapolis ordinance was passed in May 2016 and became effective on July 1, 2017. The ordinance has been challenged in Hennepin County District Court by the Minnesota ...
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    Last Thursday, August 31, 2017, a federal district court judge in Texas struck down the Obama administrations long-embattled federal overtime pay rule. The rule would have more than doubled the minimum weekly salary required to qualify for the federal Fair Labor Standards Acts (FLSA) white collar exemptions (from $455 per week to $913 per week). The rule was originally scheduled to go into effect on December 1, 2016, but the same Texas-based judge enjoined its implementation late last year.
    As a quick refresher, the FLSA requires non-exempt employees to receive no less than the ...
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    Hurricane Harvey has caused unprecedented damage in Texas, resulting in thousands of companies temporarily (or perhaps even permanently) closing down operations. While the main focus is and should be the safety of everyone affected by Harvey, this natural disaster brings with it a host of legal and practical issues for employers. Even if a company is not in the storms path, it should consider using Harvey as an opportunity to think through some of the preparations that can make disasters a bit easier to manage. Below are a few common questions employers may be faced with in an emergency.
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    Last week a federal judge in Washington, D.C. directed the Equal Employment Opportunity Commission to revisit its regulations governing employee wellness programs but did not vacate the regulations.  The court noted that striking down the regulations until they could be revised may have significant disruptive consequences and it assumed that the EEOC could address the failings it identified in short order.  Nonetheless, the decision not to stay implementation or vacate the regulations creates confusion for employer wellness programs.

    The EEOCs wellness regulations took ...

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    With the violent protest events in Charlottesville, Virginia last weekend, it seems particularly timely to address a recent Eighth Circuit Court of Appeals decision on potential labor law protections for racist behavior. While Judge Beam of the Eighth Circuit opined that no employer in America can be forced to employ a racial bigot, he did not persuade the rest of the Courts panel in the recent Cooper Tire v. NLRB decision.
     
    In the Cooper Tire case, the Eighth Circuit Court of Appeals examined tensions between behavioral protections for picketing workers under the federal National ...
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    It has become a bit easier for Minnesota employees to blow the whistle against their employers due to a recent decision of the Minnesota Supreme Court. In the case of Friedlander v. Edwards Lifesciences, LLC, et al., the Minnesota Supreme Court eliminated the previous requirement under Minnesota law that in order to establish a claim for a violation of the Minnesota Whistleblower Act, it must be shown that in blowing the whistle the employee was acting with the purpose of exposing illegal activity by the employer.  The net effect of this judicial ruling may be a relaxation of the proof ...
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    A high-profile Minnesota employer, Surly Brewing Company, has been found liable in a state court class action for violations of Minnesota's wage and hour statute governing the pooling of employee tips. The amount of damages has not yet been assessed but the class of employees who stand to receive payment from Surly under the ruling appears to number in the hundreds. Given the prevalence of various kinds of tip pooling in the hospitality industry, a great many Minnesota employers may be at risk for similar litigation under the tip pooling statute. At a minimum, an employer whose ...
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    On June 30, 2017, the U.S. Department of Labor (DOL) filed a brief with the federal Fifth Circuit Court of Appeals in support of its appeal of a lower court ruling that enjoined implementation of its 2016 overtime rule under the Fair Labor Standards Act (FLSA). Had the rule gone into effect when scheduled on December 1, 2016, it would have raised the minimum salary threshold for white collar exempt employees from $455 per week to $913 per week. Under the new Trump administration, the DOL informed the appellate court that it plans to revise the overtime rule that was issued during the Obama ...
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    Just days after withdrawing some of its guidance on joint employer and independent contractor issues, the U.S. Department of Labor (DOL) indicated it will soon reconsider the much maligned Persuader Rule and white-collar Overtime Rule that were both enjoined last fall. The DOL wants to rescind the Persuader Rule and plans to seek additional public comment on the white-collar salary thresholds set forth in the Overtime Rules.
    As a reminder, the Persuader Rule would have required employers to publicly disclose when they use consultants (including lawyers) to obtain labor relations ...
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    Posted in Discrimination
    The Trump administrations proposed budget for the upcoming federal fiscal year contains a streamlining proposal that is evoking strong opposition from both employer and employee groups. Namely, the administration has proposed merging the federal Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP).
     
    Employers and employee rights groups are rarely on the same side of regulatory matters, but in this case, there is almost unanimous opposition to the proposed agency merger. Presumably, the Trump administration believes ...
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    The U.S. Department of Labor (DOL) has withdrawn two informal regulatory interpretations, issued in 2015 and 2016, on the subjects of joint employer and independent contractor liability of employers. (See our previous blog posts about the related risks for employers, available here.)
     
    The DOLs announcement this week appears to signal a major course reversal in the wage and hour arena, particularly from 2016 when its Wage & Hour Division had made joint employment a major focus. This is likely true even though the DOL said, in announcing the withdrawal: Removal of the two administrator ...
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    As expected, Minnesota Governor Mark Dayton has vetoed legislation passed by the Minnesota legislature that would have preempted local governments ability to enact laws that set wage, vacation, or sick time requirements, or other employment benefit levels higher than those set by state-wide law. The vetoed legislation (the Uniform Labor Standards bill) was passed by the Minnesota state legislature late last month and was perceived, to a great degree, as a response to the enactment of Minneapolis and St. Paul city ordinances creating mandatory sick leave benefits for employees ...
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    Memorial Day signals the beginning of summer. Here in Minnesota, lake-goers open their cabins and put out their docks, and families gather for backyard cookouts. For many, Memorial Day has special meaning as we remember those who died in military service in our country's armed forces. In honor of Memorial Day, we take a look at USERRA and other laws that afford legal protections to service members, veterans, and their families.
     
    The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights to persons who must be absent from ...
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    Posted in Hiring & Firing
    On April 28, 2017, the Federal Trade Commission (FTC) published a post on its business blog advising employers to keep it simple when it comes to employment background check disclosure and authorization forms. While the blog post is not legally binding, it provides some useful guidance on how to comply with federal background check requirements.
     
    Employment background checks done by an outside vendor for a fee are considered consumer reports under the federal Fair Credit Reporting Act (FCRA). Pursuant to FCRA, employers are required to make a specific written disclosure to ...
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    While most of the nation has been focused on the potential repeal of the Affordable Care Act, the U.S. House of Representatives passed a bill this week that could, depending on its progression, drastically affect overtime pay practices in the private sector. The bill, dubbed the Working Families Flexibility Act, would allow private employers to offer paid time off instead of overtime pay to compensate non-exempt workers for overtime hours. Public employers already have the legal right to offer such comp time as a form of overtime pay, but private employers do not.
     

    Not surprisingly ...

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    On Thursday of last week, the U.S. Senate confirmed Alexander Acosta as the 27th Secretary of Labor, filling the final open seat in President Donald Trumps cabinet. With its secretary in place, the U.S. Department of Labor (DOL) will now be able to move forward with decisions on two major rule-making issues.

    The most widely watched decision to be made by the DOL is whether to defend or abandon the Obama Administrations FLSA rule that would, if effective, significantly increase the minimum salary required for white collar exempt employees. As we reported earlier, that rule was blocked by ...

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    Posted in Wage & Hour

    As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.

    After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOLs request, but ...

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    Posted in Leave

    A lot has happened since our last blog posts on the Minneapolis paid sick leave ordinance and the St. Paul paid sick leave ordinance. While the initial implementation dates for both ordinances are still scheduled for this summer on July 1, 2017, a Hennepin County District Court issued a temporary injunction in January 2017 prohibiting the City of Minneapolis from enforcing the Minneapolis ordinance against any employer based outside the geographic boundaries of the city. The Hennepin County District Court decision is being appealed by the City of Minneapolis. Nonetheless, the ...

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    Posted in Discrimination

    Last week, the United States Supreme Court ruled that appellate courts reviewing a lower court ruling on the enforceability of an Equal Employment Opportunity Commission (EEOC) subpoena must use an abuse of discretion standard. By requiring this deferential standard, the Supreme Court positions lower courts to be able to impose reasonable limits on the EEOCs investigatory powers.

    The Supreme Courts ruling was issued in the case of McLane Co., Inc. v. Equal Employment Opportunity Commission. The McLane case arose out of McLanes termination of Damiana Ochoa for her failure to pass a ...

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    Last week, President Trump signed four bills passed by Congress under the Congressional Review Act. The effect of each bill is to roll back regulatory actions adopted in the late days of the Obama administration. Of particular interest to employers who are federal contractors, one of the bills permanently blocks implementation of the Blacklisting Rule, otherwise known as the Fair Pay and Safe Workplaces Order, which was designed to bar companies with serious or repeated employment and labor law violations from receiving federal contracts and to address wage theft and other pay ...
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    The NCAA Men's and Women's Basketball Tournaments start this week. While these exciting college sports events bring exciting comebacks, underdog wins, and pride in employee alma maters, they also can usher in several weeks of reduced productivity, potentially contentious employee interactions, and believe it or not - legal risk.

    In 2016, 70 million tournament brackets were completed, many of which involved office pools. The first round of March Madness reportedly costs employers an estimated $4 billion in lost productivity. As part of this decreased productivity, employers ...

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    Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document ...

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    Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new presidents first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
     
    Department of Labor Developments
    When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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    Posted in Wage & Hour

    Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.

    The FLSA requires that employers pay their workers ...

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    On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.

    Mr. Acosta is Trumps first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta's confirmation less controversial and more ...

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    On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia's sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing.  Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia ...

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    Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance document on workplace harassment. The EEOC is seeking public comment on the guidance through February 9, 2017.

    Preventing systemic harassment is listed as a priority in the EEOCs Strategic Enforcement Plan for 2017-2021. In 2015, harassment charges represented over 30 percent of all charges filed with the EEOC. The same year, the EEOC created a task force to analyze workplace harassment and identify innovative and creative prevention strategies. The task force issued its findings ...

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    In our December 16, 2016, post, we reported that petitions for certiorari to the U.S. Supreme Court were filed with respect to five U.S. Circuit Courts of Appeals opinions concerning whether arbitration clauses requiring individual arbitration in lieu of class or collective lawsuits (class-action waivers) are invalid under federal labor law. There is a clear circuit divide on this issue, the resolution of which will impact thousands of employers and potentially millions of American workers.

    The Supreme Court granted certiorari on January 13, 2017, as to opinions rendered by the ...

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    While the presidential inauguration is front and center, here are two quick items employers will want to take note of:

    1. A Hennepin County Court judge has issued an order temporarily blocking enforcement of Minneapolis new paid sick time ordinance against employers who are not located within the city limits.

    2. There is a new I-9 form that must be used starting this Sunday, January 22. Previous versions of the I-9 may not be used with new hires after that date.

    Minneapolis Paid Sick and Safe Time. We have previously blogged about the Minneapolis paid sick leave ordinance. The ordinance ...

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    I recently read an interesting article noting the increase of employees reporting that they have been treated rudely or uncivilly by a boss or colleague in the workplace. The topic of workplace bullying or the bully boss has received significant attention over the last few years. Some researchers have noted that even highly performing employees may face this type of negative behavior. It is a situation that can create frustration for employers, but which typically does not give a bullied employee a legal claim unless the workplace bullying is tied to unlawful discrimination, sexual ...

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    Well, what a year 2016 has been! As the retrospectives start pouring in, we want to get ahead of the curve and look back on some of the workplace and employment law developments of 2016.

    According to a recent Forbes article, innovations in the world of work this year have included Dutch desks that pull up to the ceiling at 5:30 pm, putting an exclamation point on the end of the workday, and desks in Greece that convert into beds for power naps or overnighters. We see the latter as especially rife with employment law risk. Overtime anyone? (Not to mention the potential for office romance gone awry ...

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    In our September 23rd post, we reported that the National Labor Relations Board (NLRB) and the U.S. Department of Justice filed a petition for certiorari in NLRB v. Murphy Oil decided by the 5th Circuit Court of Appeals, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class-action waivers)are invalid under federal labor law. As we reported in September, the petition was filed in the face of a clear split among the federal Circuit Courts of Appeals. The U.S ...

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    Posted in Wage & Hour

    The December holiday season is, in many ways, a wonderful time of year. To make sure it stays that way, here is a quick refresher for employers on how to sidestep the panoply of employment law minefields that can crop up during the holiday season.

    Religious Discrimination and Accommodations

    December is home to multiple religious holidays, including Hanukkah, Christmas, Kwanzaa, and the Winter Solstice, among others. For this reason, it is important to remember that federal law and many states prohibit religious discrimination in employment and require religious accommodations ...

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    For those in the employment law and human resources fields, there are lots of moving targets to track this holiday season. Two of those moving targets include the temporary block placed on the U.S. Department of Labors (DOL) new federal overtime rules and a pending legal challenge to a new OSHA rule.

    DOL Overtime Rule

    As discussed in our post last week, a federal district court in Texas has issued a nationwide injunction blocking implementation of the new DOL overtime rules that were set to go into effect on December 1st. Yesterday, the DOL appealed the district courts ruling to the U.S ...

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    As we let you know last week, legal challenges to the new federal overtime pay rules scheduled to go into effect on December 1, 2016, are pending in federal district court in Texas. On November 22, 2016, the Judge hearing the Texas cases issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new rules. As such, employers who were busily preparing to comply with those rules have a reprieve at least for now- from having to comply.

    In his decision, Texas Judge Mazzant concluded that the plaintiffs established a prima facie ...

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    In the aftermath of President-elect Trumps victory, many employers are wondering how the president-elects priorities will impact their employment and labor law obligations. One immediate question on employers minds is whether they still must comply with the Obama administrations new federal overtime pay rules set to go into effect on December 1, 2016. It is highly unlikely that there will be any activity related to these rules by President-elect Trump prior to the December 1 deadline, although a later retraction or retrenchment of the rules is certainly possible. Employers ...

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    Posted in Labor & Unions

    The most powerful weapon a labor union can unleash against an unwitting employer, whether unionized or not, is a strike. Strikes, however, can take different forms and arise under different circumstances. Last month, the National Labor Relations Boards (NLRB) Office of the General Counsel (GC), the prosecuting arm of the federal NLRB agency, issued a short but powerful memorandum regarding an increasingly common union tactic: intermittent and partial strikes. While the Board has generally held that such strikes are not protected under the National Labor Relations Act, the GC ...

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    The White House has detailed a broad series of new administrative steps in response to an earlier Executive Order calling for actions that enhance competition to benefit consumers, workers, and entrepreneurs. The White House described these steps as consistent with the continuing effort of the administration to find ways to increase job growth and reduce income inequality across the country. Although the new administrative steps do not include new prohibitions and generally do not require immediate action, the steps do raise the possibility of near-term legislative and ...

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    Posted in Leave

    With the presidential and general election rapidly approaching, Minnesota and all employers need to be mindful of employees rights to reasonable voting leave under state laws. Election season, particularly polarizing presidential campaigns and elections, can also present some headaches for well-intended employers.

     

    Minnesota employees have a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal ...

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    Last week, the Equal Employment Opportunity Commission (EEOC) announced the approval of the new EEO-1 report form by the White House Office of Management and Budget (OMB). Beginning in March 2018, the EEOC will use the revised EEO-1 report to collect summary employee pay data from certain employers. Specifically, private employers with 100 or more employees are required to fill out the revised EEO-1 report on an annual basis. Federal contractors and subcontractors with 50-99 employees will not have to submit summary pay data, but they will continue to report demographic data ...

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    Insubordination is a term that shows up frequently in documentation and discussions about why an employee was, or should be, disciplined or terminated. According to the dictionary definition, insubordinate means not obeying authority or refusing to follow orders. Following direction from ones boss is a pretty important part of any job, so insubordination certainly sounds like it should be a terminable offense. However, it is risky for employers to accept a charge of insubordination at face value without analyzing the nature of the conflict that is driving it. Labor law protects a ...

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    On September 9, 2016, the National Labor Relations Board (NLRB) and the U.S. Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class action waivers)are invalid under federal labor law. Given the clear split on this legal issue among the federal circuit courts, the Supreme Court appears likely to accept review.

    What's the Split and Where Does Minnesota Stand?

    Class Action Waivers Are ...

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    Posted in Leave
    Nearly a year ago, we began discussing the growing movement from the local to the national level to require employers to provide employees with paid sick leave. Just last week, St. Paul became the latest city to pass an ordinance that guarantees paid sick leave for covered employees who work 80 hours or more in the city per year.
    Here are some key details of the St. Paul sick leave ordinance:
    • The ordinance will become effective July 1, 2017 for employers with 24 or more employees. The effective date is January 1, 2018 for employers with 23 or fewer employees.
    • The ordinance requires all
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    In our January 29, 2016 post, we informed you that the U.S. Equal Employment Opportunity Commission (EEOC) had published a proposed enforcement guidance on Retaliation and Related Issues for public comment. On August 25, 2016, the EEOC issued the final enforcement guidance, which is available here: 
    The new enforcement guidance replaces the retaliation section of the EEOCs 1998 Compliance Manual and addresses the issue of retaliation under various federal anti-discrimination statutes, including the ...
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    Posted in Wage & Hour
    The victory for proponents of a new $15 per hour minimum wage in Minneapolis turned out to be short-lived. Yesterday, the Minnesota Supreme Court issued an expedited ruling that struck down a lower court ruling that had required a ballot referendum to amend the Minneapolis City Charter to add the increased minimum wage for Minneapolis workers. We recently blogged about that campaign and the lower courts ruling.  The Supreme Court issued an abbreviated decision, due to the rapidly approaching date for printing ballots, with a more detailed decision to be issued later.


    The Minnesota ...

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    Its been a busy year for Minnesota employers on the wage and hour front. As discussed in prior posts, new salary requirements will go into effect for white collar exempt workers on December 1, 2016, and a new Minneapolis sick pay ordinance will become effective July 1, 2017. On the heels of these developments, employers may also need to prepare to address a potential $15 per hour minimum wage requirement in Minneapolis. Wage advocacy groups recently scored a victory when a Minnesota district court said that Minneapolis voters must be permitted to vote in November 2016 on the proposed $15 ...

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    Posted in Labor & Unions
    Employers by now are likely accustomed to hearing about the National Labor Relations Board (NLRB) and its efforts to firmly insert itself into both union and non-union workplaces. For the past few years, the NLRB has issued countless decisions invalidating what have otherwise been deemed routine and sensible employment policies, such as requiring confidentiality of internal investigations, clarifying at-will employment, and prohibiting workplace bullying. Recently, however, the NLRB issued a decision involving corporate mergers and acquisitions that will impact ...
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    As discussed in prior posts, the Equal Employment Opportunity Commission (EEOC) has a strategic enforcement agenda focused on expanding Title VII protections to encompass gender identity and sexual orientation. Courts are weighing in, with varied results. According to the EEOCs website, a number of federal courts have sided with the EEOCs interpretation of Title VII, primarily in the context of gender identity. On July 28, 2016, however, the U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit precedent, Title VIIs anti-discrimination protections do not ...
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    We have previously blogged (here and here) about the expanding risks of joint employer liability under various employment laws, most prominently the National Labor Relations Act and the Fair Labor Standards Act. Recent developments underline just how prominent these risks are becoming for many businesses, including traditional employers, staffing and temp agencies, and franchised companies.
    The U.S. Department of Labors (DOL) Wage and Hour Division recently announced it has obtained a federal court consent judgment and order of $1.4 million jointly against United Plastics ...
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    I may be getting older, but it seems like I just wrote last years post about changes in Minnesota's minimum wage law. However fast it seems to you, on Monday, Aug. 1, 2016, Minnesota's minimum wage will increase again to $9.50 per hour for large employers. The increase stems from significant changes to Minnesota's minimum wage statute in 2014, providing for higher minimum wage rates over time indexed to inflation. Employers should ensure they are prepared for the change and that they are also preparing for the substantial change in salary requirements for white collar exempt employees ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and in light of the important changes to the DOL overtime regulations going into effect December 1, 2016, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals. The series has covered some basics of this important law and includes a discussion of the DOLs new regulations. This is the fourth post in that series.*
     
    As discussed in previous posts, determining the proper FLSA classification of an employee can be taxing. In addition to the white collar exemptions (e.g. Executive Employees
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    As we've discussed in prior posts, a top strategic enforcement focus of the EEOC is protecting LGBTQ individuals from discrimination in the workplace. The EEOC filed its first Title VII lawsuits alleging sex discrimination against transgender individuals in late 2014, and the EEOCs efforts in this area continue to make headlines.
    The EEOCs most recent suit, filed last week, is against Bojangles Restaurants, Inc., which operates a chain of fast food restaurants in the Southeast portion of the United States. In the lawsuit, the EEOC claims that a transgender woman, Jonathan Wolfe ...
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    The federal Occupational Safety and Health Administration (OSHA) issued a final regulation in May that establishes new electronic recordkeeping and reporting requirements. The overall purpose of the new regulation is to reinforce anti-retaliation protections for employees who report workplace injuries and illnesses. Electronic reporting requirements under the new rule go into effect on January 1, 2017, but employers must comply with the rules anti-retaliation provisions by August 10, 2016.

    Anti-Retaliation Requirements:
     
    The anti-relation provisions include three ...
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    The Minnesota Court of Appeals recently clarified that an employee who is fired for refusing to comply with an employers unlawful tip-sharing practice can sue for wrongful discharge under the Minnesota Fair Labor Standards Act (MFLSA) and seek monetary damages, including back pay. In Burt v. Rackner, an employee of Bunnys Bar & Grill (Bunnys) was told that he needed to give more of his tips to the bussers, and that there would be consequences if that did not happen. That did not happen and Bunnys fired the employee for not sharing his tips with other staff.
    The Court ruled that the ...
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    A Chinese employer made news last week for an unusual workplace discipline episode after a cellphone video revealed employees receiving public spankings for poor performance. The cellphone video shows a man with a wooden stick spanking eight employees four times each. The employer, a bank, claimed the spankings occurred during a team-building exercise facilitated by a corporate coach.
    Corporal punishment is illegal in China, and, not surprisingly, a spanking policy or team-building endeavor of this kind would raise serious legal issues for U.S. employers as well. 
    In ...
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    A white news anchor has filed a race discrimination lawsuit against her former employer, a Pittsburgh television station. Wendy Bell made headlines earlier this year when she was let go from her anchor position after posting controversial comments on a Facebook page sponsored by the television station. Now, Bell is making headlines again for her unusual race discrimination claims.

    Earlier this spring, the Washington Post reported that Bell was fired after she posted comments on Facebook about a mass shooting that Bell had recently covered on air.

    In her comments, Bell stated You ...

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    Posted in Wage & Hour
    As we reported last month, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions to the Fair Labor Standards Act (FLSA), which will go into effect on December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for the white collar exemptions. Many nonprofit employers are concerned about the impact the salary changes will have on their organizations.
    Neither the FLSA nor the regulations provide an exemption from the overtime requirements for nonprofit organizations. However, some nonprofit ...
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    Posted in Discrimination
    On May 16th, the Equal Employment Opportunity Commission (EEOC) released final regulations designed to reconcile contradictory rules for employers related to employee wellness programs and non-discrimination laws. An EEOC summary of the final regulations is available here, and you can find the final rules here and other commentary and coverage here, here, and here.
     
    The Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) include clear restrictions on an employers ability to collect and use employee health information. Just ask the ...
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    After ongoing discussions for more than a year, the Minneapolis City Council voted unanimously on Friday May 27, 2016, to become the first city in the Midwest and the 23rd city nationally to mandate paid sick leave for employees. Minneapolis Mayor Betsy Hodges first called on the Minneapolis City Council to pass a local sick leave ordinance in her April 2015 State of the City address. Since that time, numerous businesses, community members, and a fifteen-member task force named the Workplace Partnership Group have been studying and weighing in on the passage of a sick leave ordinance.
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    Last week, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions which will go into effect December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for most exempt employee statuses and also increases the total annual compensation amount for the exempt category of highly compensated employees.
     
    While the Fair Labor Standards Act (FLSA) requires most employers to pay mandatory minimum wages and overtime pay to employees, certain employees are exempt. These exemptions generally require ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and culminate in a discussion of the final changes to the regulation upon their release. This is the third post in that series.*
     
    Given the time-intensive and nuanced analysis involved in calculating hours worked by non-exempt employees, compensable and non-compensable working time, and the regular rate of pay, many employers ...
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    The Federal Defend Trade Secrets Act (DTSA), which was featured in our blog post last week, was signed into law by President Obama on Wednesday, May 11, 2016. As discussed in last weeks post, this important new federal law offers another avenue for employers to protect their valuable trade secrets. The DTSA creates two significant benefits for companies: (1) consistent and uniform law nationwide; and (2) guaranteed access to federal courts. It also provides for injunctive relief and additional monetary remedies. Now that the DTSA has been signed into law, companies seeking the ...
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    After several years of consideration, the U.S. Congress has finally passed legislation that will create a federal statute for the protection of trade secrets, entitled the Defend Trade Secrets Act (DTSA). The DTSA had strong bipartisan support, passing in the Senate by a vote of 87-0 (on April 4) and passing by a vote of 410-2 in the House of Representatives (on April 27). President Obama has previously indicated that he will sign the legislation into law and that action is expected to occur soon. With its enactment, the DTSA will represent the first federal law protecting companies ...
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    Posted in Wage & Hour
    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and culminate in a discussion of the final changes to the regulation upon their release. This is our second post in that series.*
    Additional contributions by Dorrie Larison.
    As discussed in our previous FLSA blog post, it is crucial for an employer to accurately calculate a non-exempt employees regular rate of pay. If you missed ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and end with a discussion of the final changes to the regulation upon their release.*
    As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 ...
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    *This is the first in a recurring series of You Cant Make This Stuff Up posts.  One fun part of working in the employment law or HR world is getting to track new and interesting employment law developments and navigate situations that sometimes are stranger than fiction. In our You Cant Make This Stuff Up posts, well bring to your attention some of the strange and sometimes unbelievable situations that employers and employees face.*
     
     
    In recent stranger than fiction news, a Mankato employer was raided Thursday by Minnesota drug agents because it allegedly gave its employees an unusual ...
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    Last week, we wrote about employer best practices with respect to responding to possible employee medical issues. A recent case out of the Eighth Circuit showcases one employers creative approach to thinking about possible future medical issues.

    BNSF Railway Company, based in Nebraska, reportedly has had a policy of not hiring any applicant for a safety sensitive position if the applicant has a Body Mass Index (BMI) of 40 or higher. According to the Centers for Disease Control and Prevention, a person with a BMI of 30 or higher is considered obese.  In the recent Eighth Circuit case ...

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    A helpful rule of thumb for employers trying to navigate compliance with the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other laws affected by employees health or medical conditions, is to leave the diagnosing to doctors. Employers are obligated to provide leave where appropriate, or accommodations when needed, but an employer who tries to determine on their own whether an employee (or an employees family member) has a real medical issue, what the cause of that issue is, or what it will take to accommodate that issue, puts itself at higher risk of ...
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    On March 22, 2016, the United States Supreme Court issued an opinion making it clear that employees can establish commonality through the analysis of an expert, and application of his representative sample evidence, for purposes of class certification of state law claims, under Rule 23, and certifying FLSA claims as a collective action, under 29 U.S.C. 216. Tyson Foods, Inc. v. Bouaphakeo, __ S. Ct. __, No. 14-1146, 2016 WL 1092414 (March 22, 2016).

    The plaintiffs in Tyson Foods worked in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa. To do their ...

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    Last week, the Eighth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) ruling that a Jimmy Johns franchisee engaged in unfair labor practices and violated the rights of workers under the National Labor Relations Act (NLRA), after the employees were terminated for staging a public campaign protesting the company's sick leave policy.

    In MikLin Enterprises, Inc. v. National Labor Relations Board, employees were fired after displaying posters which protested the company's sick leave policy at the franchisee's Jimmy John's sites. The employees had ...
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    The highly anticipated final white collar salary exemption rule (Final Rule) is one step closer to becoming reality. The proposed rule would raise the minimum weekly salary requirement for the FLSA white collar exemption from the current $455 per week amount ($23,660 annually) to $970 per week ($50,440 annually). You can read our earlier post about the proposed rule here.
    On Tuesday, March 15, the U.S. Department of Labor sent the Final Rule to the White House Office of Management and Budget (OMB) for review, ahead of the expected review and release schedule. The specific provisions of ...
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    As noted in a previous blog post, Justice Scalia's sudden passing last month will have a big impact on how key labor and employment cases are decided by the U.S. Supreme Court. On March 16th, President Obama nominated Judge Merrick Garland to fill Justice Scalia's seat. Judge Garland is currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The D.C. Circuit is a primary forum for challenges to administrative actions, including actions by the National Labor Relations Board (NLRB). This means that Judge Garlands judicial record is of ...
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    This week, the U.S. Equal Employment Opportunity Commission (EEOC) made the landmark announcement that it has sued two companies for sexual orientation discrimination under Title VII. On March 1, 2016, the EEOC filed suit against Scott Medical Health Center in federal district court in Pennsylvania and Pallet Companies d/b/a IFCO Systems in federal district court in Maryland.  Both cases allege that the defendant employers discriminated against the plaintiffs based on sexual orientation and, by doing so, violated Title VII of the Civil Rights Act of 1964. Title VII does not ...
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    Workplace wellness programs continue to grow in popularity, despite being an enforcement target of the Equal Employment Opportunity Commission (EEOC). We have previously posted some updates on the evolving law and regulations in this arena, as well as some compliance recommendations.

    Some popular wellness program features include financial incentives, disincentives, and data mining. According to some sources, more than a third of U.S. employers use financial incentives to encourage employees to participate in wellness programs. In addition, data mining and use of big data ...

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    Regardless of ones political views, the passing of a sitting United States Supreme Court Justice always has the potential to create major waves on the waterfront of federal law. But the recent death of Justice Antonin Scalia, in particular, could have significant implications for employers. There are currently several cases pending before the Supreme Court that raise important employment and labor law questions. The potential voting shifts that always follow a reconfiguration of the Supreme Court could impact the ultimate outcome of those cases.

    Just a few of the employment and ...
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    In a recent ruling, the White case, the Minnesota Court of Appeals held that an employee who has been terminated for misconduct caused by mental illness, such as depression, may nevertheless be eligible for Minnesota unemployment benefits.   Notably, the Court also ruled that an unemployment judge has an affirmative duty to help such a claimant present relevant evidence if the claimant is unrepresented by counsel.
     

    The Minnesota unemployment law generally provides that employees terminated through no fault of their own are entitled to benefits.  Individuals who voluntarily quit ...

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    The Equal Employment Opportunity Commission (EEOC) is preparing to issue a new enforcement guidance on Retaliation and Related Issues. The impending guidance, available here, is not yet final, but has been published by the EEOC for public comment. Once the guidance is finalized, it will not technically carry the force of law, but it will feel like it does. While courts are not obligated to follow EEOC guidance, the EEOC itself relies on its own enforcement guidance documents when addressing discrimination charges or litigating on behalf of claimants. Employers should, therefore ...
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    In furtherance of pay equality and greater pay transparency, new requirements for federal contractors took effect on January 11, 2016, making it unlawful to discriminate against a party who inquires about, discusses, or discloses pay or compensation. (See 41 C.F.R. Part 60-1.) The executive order is intended to promote pay transparency and openness by permitting workers and job applicants the freedom to share information about pay or compensation without the threat of subsequent discrimination.

    The executive order is one of the methods the Obama administration has chosen to ...

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    In the early days of 2016, the Equal Employment Opportunity Commission (EEOC) continues its strategic enforcement focus on LGBT rights. Last week, the EEOC filed an amicus brief in a U.S. Court of Appeals for the Eleventh Circuit case, Burrows v. College of Central Florida.  In its brief, the EEOC argued that employment discrimination based on an individual's sexual orientation is a form of sex discrimination and unlawful under Title VII of the Civil Rights Act.


    In the Burrows case, the plaintiff, a college administrator, sued her former employer, claiming she was ...

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    The National Labor Relations Board (NLRB) has once again entered the confusing and inconsistent intersection between our technological ability to record almost anything and the rights of employers to restrict recordings in the workplace (the Gray Zone). (See our prior discussion about this topic in 2013). In a recent decision, the NLRB struck down a Whole Foods workplace policy banning employees from recording conversations or taking photographs in the workplace without approval.

    In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by ...

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    Wage and hour issues heated up earlier this year when the U.S. Department of Labor (DOL) released a proposed rule that would more than double the salary threshold for employees to be classified as exempt under the "white collar" exemptions to the federal overtime requirements. You can read our post from July of this year to learn more about the proposed rule, which would raise the minimum weekly salary requirement for the white collar exemptions from $455 per week to $970 per week.

    The increased salary issue was expected to reach the boiling point with the release of the final DOL rule in ...

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    The Star Tribune reported Wednesday that a former high-ranking Starkey employee has sued the company for retaliation, claiming that she was wrongfully fired for raising questions about potential improprieties in the company's business practices. The suit continues a long-standing trend of mounting whistleblower and retaliation claims against employers. As discussed in an earlier post this year, retaliation claims continue to be the most commonly filed Equal Employment Opportunity Commission (EEOC) charge.

    Retaliation claims are increasingly common, because virtually ...

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    We've previously posted on the growing social and legal movement for transgender equity. In recent developments, a Minnesota-based federal court ruled that Lisa Scott, a transgender woman, could proceed to trial on a claim that her rejection as a plasma donor was unlawful transgender discrimination under the Minnesota Human Rights Act (MHRA). The MHRA prohibits employment discrimination based on gender identity, but also contains provisions that prohibit business discrimination based on gender identity. Scotts lawsuit is based on the business discrimination provisions of ...
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    The National Labor Relations Board (NLRB) has just approved a ruling that certain employees (in this instance, tugboat captains) are not supervisors within the meaning of the federal labor law (the National Labor Relations Act, or NLRA). The NLRB said it drew this conclusion because the employer did not show the employer held the captains accountable for the performance of the mates whom they directed. A dissenting NLRB member complained that the Boards conclusion in this case fails the test of common sense.

    The tugboat captains case makes painfully clear that identifying and ...
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    As we begin December and head into the end of another year, our thoughts often turn to giving.  But, unfortunately, it is also a time when employers should give some thought to taking e.g. the possible theft of confidential business information.  It is common for employees considering career changes, whether taking a job with a competing company or starting their own business, to make that move shortly after the start of a new year (oftentimes sticking around long enough to receive year-end bonuses).  And, an all too common first step to those career moves can include the gathering of ...
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    The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

    • Are employees entitled to time-and-a-half pay for holidays worked?  No unless time worked on a holiday includes overtime ...
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    Posted in Labor & Unions

    When picturing a union organizing campaign, you might picture a contentious battle between a justice-seeking union and the supposedly big bad corporate employer. But, this week we saw one example of unionization in a more cooperative work environment . . . literally.

     
    On Monday, workers at the Wedge Community Co-op in Minneapolis voted 76-31 to be represented by the United Food and Commercial Workers Local 1189, becoming the first cooperative grocery in the Twin Cities to unionize.
     
    Co-ops tend to be all about democracy and the coming together of community members for a common ...
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    Last week, President Obama made headlines when he announced a forthcoming executive order to ban the box on federal job applications. The President directed the federal Office of Personnel Management to modify its rules for federal agency hiring decisions to delay questions about an applicants criminal history until later in the hiring process. While many federal agencies have already taken this step, the Presidents action will make the ban the box practice universal for federal government hiring. In making his announcement, President Obama cited statistics indicating that 70 ...
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    Even for employers with the best of intentions, workplace wellness plans carry risk. We have previously posted about some of the perils and pitfalls that can result from corporate efforts to help employees stay well. We also wrote about a local company that found itself in the Equal Employment Opportunity Commissions (EEOC) crosshairs because of its wellness plan.

    After facing increased EEOC scrutiny, employers may soon be receiving some welcome news from the EEOC. Last week, the EEOC issued a Notice of Proposed Rulemaking for a rule that, if finalized, would amend regulations ...
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    The National Labor Relations Board (the "Board") continues to focus on protecting employee activity in social media outlets, as reflected by the Board's protected concerted activity page.  Last week, the Second Circuit Court of Appeals decided a case that will likely further that enforcement activity.
    In Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. National Labor Relations Board, the Second Circuit upheld the Board's decision that an employee's use of the Facebook "like" and comment features can be protected activity under the National Labor Relations Act ("NLRA").  ...
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    Posted in Wage & Hour
    In the midst of busy work days, it can be helpful to revisit important fundamentals. As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.
    An employees regular rate is, however, not necessarily the employees set hourly rate of pay. Instead, the regular rate of pay is the hourly rate that the employee has, in fact, received for each weeks work. Because overtime pay is normally ...
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    Posted in Leave, Wage & Hour
    The Star Tribune reported today that the Minneapolis mayor and city council have, at least for now, tabled a controversial proposal to require businesses to adopt predictable scheduling practices or face monetary penalties. As discussed in last weeks post, the City's earlier proposal would have penalized Minneapolis-based employers for failing to give substantial advance notice of work schedules or changing schedules on short notice. The proposal faced significant opposition from Minneapolis businesses and even some of the workers that the proposal was intended to help (see ...
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    Throughout the year, we've posted about efforts at the federal and Minnesota legislative level to enact paid sick leave laws.  So far, there's no federal or Minnesota state-wide law, but there is clearly a growing movement afoot around the country to pass such laws. And now, the Minneapolis City Council is getting in on the action. The City Council is considering an ordinance that has been referred to as one of the most far-reaching paid sick leave initiatives in the nation. The proposed ordinance, known as the Working Family Agenda, would require every business in the city of Minneapolis ...
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    Three former University of Minnesota-Duluth coaches filed suit against the University Board of Regents on Monday in federal court. Former women's hockey coach Shannon Miller, former softball coach Jen Banford, and former women's basketball coach Annette Wiles allege that University administrators discriminated against them based on their gender and sexual orientation and failed to properly investigate reports of harassment and discrimination. The lawsuit also claims disparities between the men's and women's athletic programs at the University.
    This lawsuit comes at a ...
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    Posted in Labor & Unions
    The National Labor Relations Board (NLRB) continues to aggressively advance its agenda of making it easier for unions to organize new groups of workers. Just last month the Board set a new legal test for when two separate organizations should be considered joint employers for union-related purposes, including liability for unfair labor practices and responsibility for bargaining a union contract.
     

    We had written previously about preventive steps organizations might take to avoid joint employer liability, and such actions should be considered now more than ever following the ...

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    As anticipated, President Barack Obama celebrated Labor Day by issuing an executive order mandating that federal contractors provide paid sick leave to their employees. The executive order requires that federal contractors and subcontractors provide their employees up to seven days of paid leave per year for themselves, to care for a sick family member, or to address domestic violence and stalking situations.

    President Obamas order is the latest in a series of executive orders aimed at federal contractors as the administration tries, so far unsuccessfully, to get broader ...
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    Nearly every employer has dealt with a difficult employee, a tense termination, or a particularly serious workplace conflict. In the wake of a tragic event like the recent Roanoke news station shooting, many employers are looking for better ways to handle employee conflicts and protect employees. According to OSHA statistics, each year nearly two million Americans report being victims of workplace violence (which includes physical violence, threats, harassment, and abuse). While no policy, procedure, or safety measure can guarantee security, employer policies and ...
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    The Minnesota Court of Appeals has made it a bit tougher to enforce certain non-competition agreements, but, with careful drafting, employers can safeguard themselves against the Court's ruling. In J.A.B., Inc. v. Naegle, 867 N.W.2d 254 (Minn. Ct. App. 2015), the Court of Appeals held that a two-year non-solicitation agreement that did not expressly recite the legal consideration for the agreement was unenforceable in light of Minnesota's statute of frauds, set forth at Minn. Stat. 513.01.

    Under fundamental principles of contract law, a contract must be supported by ...

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    Third party employers of home companionship or care workers may soon be required to pay those workers overtime pay under the federal Fair Labor Standards Act (FLSA). Last week, the United States Court of Appeals for the District of Columbia Circuit issued a ruling upholding the U.S. Department of Labors (DOL) Final Rule on the Application of the Fair Labor Standards Act to Domestic Service (the Final Rule). As a result, domestic service workers employed by third parties may soon be subject to FLSA overtime pay requirements.

    The Final Rule
     
    The DOLs Final Rule was issued some time ago and ...
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    Like most law firms, we interview current law students in the fall to identify those we will invite to work with us the following summer. Those who join us are summer associates, and we have just bid adieu to a terrific group from this summer. Summer associates who accept offers from the firm for attorney positions will rejoin us after they complete their last year of law school and take that little test called the bar exam.

    Millennials all, our recent summer associates didn't fit the negative stereotypes so often cast upon workers of their generation. This should really come as no surprise; ...

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    Continuing his pen and phone approach to effecting change, The New York Times announced last week that President Obama is considering using his executive authority to mandate paid sick days for federal government contractors and subcontractors.

    The draft executive order, which is marked pre-decisional and deliberative, would require a minimum of 56 hours (or seven work days) per year of paid sick leave for employees of federal contractors and subcontractors. Under the draft executive order, the paid sick leave would allow an employee to take paid time off to care for themselves or a ...
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    The EEOCs current strategic plan includes, as an enforcement priority, a focus on the employment rights of lesbian, gay, bisexual and transgender (LGBT) individuals. On the heels of prior EEOC rulings and lawsuits aimed at expanding LGBT workplace protections, the EEOC recently issued a lengthy opinion on July 16, 2015, in which it concluded that Title VII prohibits sexual orientation discrimination. While the decision involved a federal government employer, the ruling has practical implications for private employers that are required to comply with Title VII. The decision is ...
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    Its that time of year again.  On Saturday, August 1, 2015, Minnesota's minimum wage will increase once more to $9 per hour for large employers.  Minnesota's minimum wage statute was changed significantly in 2014 resulting in new definitions of large and small employers, higher and changing minimum wage rates over time, and indexing to inflation.  Employers should ensure that they are prepared for the changes to come.

    Minnesota's minimum wage is based on the size of the employer as determined by gross sales, with large employers paying more than small employers.  Under the amended 2014 ...
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    Posted in Discrimination
    There's only a few more sleeps ahead of us before the Americans with Disabilities Act (ADA) turns 25 years old. The law was signed by President George H.W. Bush on July 26, 1990. If you want to take a trip down memory lane, you can find a video of the Presidents signing ceremony here. As the ADAs historic moment approaches, you can also watch for one of the various celebration events going on around the country and track the ADA Legacy Bus as it nears the completion of its year-long celebration and awareness tour.
     

    Since the ADA was enacted, the landmark law has been expanded by the enactment of the ...

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    The U.S. Department of Labor (DOL) yesterday issued Administrators Interpretation 2015-1, providing guidance on the classification of employees and independent contractors. The DOL identifies the misclassification of employees as independent contractors as a high priority enforcement issue, labeling it one of the most serious problems facing affected workers, employers, and the entire economy. The DOLs guidance is intended to help employers in classifying workers and to curtail misclassification.

    The fifteen page document outlines the familiar multi-factor economic ...
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    On July 6th, the federal Department of Labor initiated a rule-making process designed to significantly increase pay for white collar managers, administrators and professionals by more than doubling the salary an employer is required to pay to classify them as exempt from overtime requirements.  Estimates are that the change could result in employers being required to pay overtime to some 4.6 million workers who are currently classified as exempt from the overtime rule. The rule, as proposed, would also mean that employers would have to re-examine the overtime exemption for ...
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    The U.S. Supreme Court announced another eagerly anticipated decision last Friday, ruling that gay and lesbian couples have a fundamental right under the U.S. Constitution to marry. The Courts decision in Obergefell v. Hodges follows decades of advocacy by groups favoring and opposing same-sex marriage, as well as ramped up legislative activity and court battles over the legality of same-sex marriage in recent years.

    The cases before the Supreme court involved state laws from four states Kentucky, Michigan, Ohio, and Tennessee -- that defined marriage as the union of a man and a ...

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    The U.S. Supreme Court announced its much awaited decision today in the case of King v. Burwell. In its ruling, the Court upheld a key provision in the Affordable Care Act (ACA) that provides government subsidies for health care insurance for all Americans who qualify, regardless of whether the coverage is obtained through a federal or state run health care exchange. The Courts decision affirmed an earlier decision in the case by the U.S. Court of Appeals for the Fourth Circuit and endorsed the view of the Obama administration that subsidies should be available for all lower and ...
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    As distribution of medical marijuana is set to begin in Minnesota on July 1, 2015, a new ruling from the Colorado Supreme Court further clouds the air for employers attempting to handle the employment ramifications of marijuana use in the twenty-four jurisdictions now permitting marijuana use.
     

    On June 15, 2015, the Colorado Supreme Court held that an employer was permitted to discharge an employee due to his licensed medical use of marijuana at home during nonworking hours. In the case, Coats v. Dish Network, the employee had worked for the employer for three years before he tested ...

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    A hiring policy based on looks is like nails on a chalkboard to an employment lawyer. So it comes as no surprise that the "Look Policy" of an Abercrombie & Fitch (A&F) store caused A&F trouble before the Supreme Court last week when the Court found in favor of the EEOC on a charge of religious discrimination against the clothing retailer. However, the decision has implications that reach beyond image-based hiring and sets standards of proof for religious accommodation claims and Title VII generally.

    The Court's 8-1 opinion held that an employer need not have actual knowledge of an ...

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    Government contractors continue to be the target of increased regulation. As part of implementing President Barack Obamas Fair Pay and Safe Workplaces Executive Order (E.O. 13673), the U.S. Department of Labor has issued proposed guidance and the Federal Acquisition Regulatory Council has issued proposed regulations. The Presidents Executive Order, issued last summer, requires federal contractors to disclose adverse judgments in lawsuits, administrative/agency proceedings, and arbitration to the contracting agency under fourteen federal employment and ...
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    The US Department of Labor has finally issued new versions of its sample Family and Medical Leave Act (FMLA) notice, provider certification, and military certification forms. The old DOL forms expired some time ago, leaving employers to wonder when they would receive the DOLs new blessed versions of the forms. Well, they are finally here!
    Employers are not required to use the DOLs new sample FMLA forms, but using them can give employers the peace of mind that they are asking for information they are allowed to obtain without over-reaching, and that they are providing all the FMLA ...
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    Posted in Discrimination
    This month, the EEOC began to roll out ACT Digital, the agency's first step to a digital charge system. ACT Digital will enable electronic transmission of documents filed between the parties to a charge and the EEOC. Implementation began on May 6 with EEOC offices in the Charlotte and San Francisco areas. EEOC offices in Denver, Detroit, Indianapolis, and Phoenix will also begin implementation by the end of May. The remaining EEOC offices will roll out implementation in stages, with the EEOC expecting ACT Digital to be available in all offices by Oct. 1, 2015.

    Phase 1 of implementation ...
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    A recent court order in a case in Iowa reminded me of how easy it is for employers to waive the attorney-client privilege by disclosing (deliberately or inadvertently) the advice they receive from their attorneys. The order shows that a careless reference indicating that a decision was based on the advice of counsel opened the door and required the disclosure of conversations between the attorney and the client. Whitney v. Franklin General Hospital (U.S. District Court for the Northern District of Iowa, Ruling on Motion to Quash, April 23, 2015).
    One of the oldest recognized ...
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    Two recent articles pose interesting questions regarding recruiting and retaining younger workers. The first, at Fortune.com, and a related Wall Street Journal blog post, consider whether an employment advertisement seeking digital natives is evidence of age discrimination. The article notes that the term digital native was coined by author Marc Prensky and refers to individuals who grew up with technology, becoming native speakers of the digital language of computers, video games and the Internet.

    Fortune found, however, that employers have used the term in a way that could ...
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    Posted in Discrimination
    Earlier this week, the U.S. Supreme Court issued a much anticipated ruling on the question of whether courts have the authority to review the adequacy of the Equal Employment Opportunity Commissions (EEOC) pre-lawsuit efforts to settle a case under Title VII of the Civil Rights Act of 1964. The EEOCs website contains a press release declaring the Courts Mach Mining ruling a step forward for discrimination victims, but other commentators have declared the ruling to be a victory for employers. This mixed reaction likely stems from the fact that the Courts opinion, when read carefully ...
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    Much has been written in recent months about the National Labor Relations Board (NLRB) standard for joint employment liability between separate businesses, especially with respect to franchisor McDonalds Corporation, which is facing dozens of cases in which it has been named as a respondent along with its franchisees. The NLRBs General Counsel has been advocating for a change to the joint employer test currently used by the NLRB.  An arm of the U.S. Chamber of Commerce recently published a 40-page report on how the NLRBs proposed new joint employer test threatens small ...
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    The Equal Employment Opportunity Commission (EEOC) forged new ground earlier this month when it ordered the U.S. Army to pay damages to a transgender employee based on a discriminatory restroom policy. We have reported in past posts on the EEOCs increased enforcement focus on transgender rights in the workplace under Title VII of the Civil Rights Act of 1964, as well as the increased societal focus on this issue. (See, prior posts here and here.) The EEOCs recent April 1st ruling in Tamara Lusardi v. John M. McHugh, Secretary, Department of the Army reflects this trend and sets forth ...

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    Employers should be aware of recent federal agency activity that may require modifications to employee confidentiality agreements. The federal Securities and Exchange Commission (SEC) issued a press release on April 1, 2015, trumpeting the SECs first enforcement action against an employer based upon the company's use of confidentiality agreements for its employees that included improperly restrictive language. In its press release, the SEC announced that KBR Inc., a Houston-based technology and engineering company, had entered into a settlement agreement with the SEC ...
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    The federal National Labor Relations Board (NLRB) is at it again. This time, the Boards general counsel has issued a March 18, 2015, Report Concerning Employer Rules. The Report is a detailed document setting forth the NLRBs position on the types of employee handbook policies that comply with or run afoul of Section 7 of the federal National Labor Relations Act (NLRA).  Under Section 7, all non-management employees have a legally protected right to engage in group activity aimed at improving their terms and conditions of employment. Many employers are surprised to learn that ...
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    In an update to a previous post, the highly anticipated United States Supreme Court decision in UPS v. Young was announced last week. In a 6-3 decision, the Court vacated rulings of the district court and the Fourth Circuit Court of Appeals, both having issued summary judgment in favor of UPS. The Court remanded the decision to determine whether the policies of UPS were legitimate and nondiscriminatory. The Court stated the Fourth Circuit had not yet considered the combined effects of UPS' other accommodation policies or the strength of UPS' justifications for the ...
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    When I present harassment training, I tell my audience that harassment is usually unlawful only when based on a protected-class status, such as race, gender, age, disability, etc. During the training, I often tell the story of the "equal opportunity harasser" the individual in the workplace who is a jerk to everyone and does not discriminate in picking the targets of his/her jerkiness (that's my technical term). This is the person who is a jerk to everyone. Because this person's behavior is status-blind, it doesn't violate discrimination or harassment laws.

    Some Minnesota ...

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    We recently alerted you to proposed legislation that, if passed, would expand last years Minnesota Womens Economic Security Act (WESA) by requiring paid sick and safe time off benefits for almost all Minnesota employees and extending pregnancy accommodation and parental leave obligations to all Minnesota employers.  You should be aware that Minnesota lawmakers are at it again. Late last month, additional legislation (HF 1093 and SF 1085) was proposed that is aimed at benefiting working parents. Together with the earlier proposed sick and safe leave bill, the legislation is being ...
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    Two big news items this week have affected people near and dear to me. First, I am an alumnus of the University of Oklahoma (OU). OU made national news this week due to the deplorable actions of now former members of its chapter of the Sigma Alpha Epsilon (SAE) fraternity, who were filmed chanting a racist song on the way to a party. The video went viral online, prompting a local and national outcry. OUs President, David Boren, moved swiftly to denounce the students actions and shut down the fraternity chapter. The second big news event occurred just down the street from my downtown ...
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    As we previously reported, the EEOCs targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower courts grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employers background checks, because the EEOCs expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOCs background check ...

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    On February 23, 2015, the Department of Labor (DOL) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.

    The changes to the rules are the result of last years U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (DOMA) which defined marriage for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined marriage for FMLA purposes as ...

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    Posted in Discrimination
    The EEOC released its FY2014 (Oct. 1, 2013 Sept. 30, 2014) enforcement statistics last week.

    Overall, the EEOC reported a decrease in filed charges compared with recent years.  The agency attributed the 5.2 percent decline from FY2013, at least partially to the government shutdown in October 2013. However, it also appears that apart from the shutdown, charges are slightly declining in recent years with FY2013 showing a 5.7 percent decline from the prior year.
    As in prior years, retaliation claims were the most frequently filed charge in FY2014. As such, it may be timely to ...
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    In conversations with clients and employment law colleagues, I have dubbed 2014 the year of the employee handbook. In the wake of the passage last year of the Minnesota Women's Economic Security Act (WESA), Minnesota employers were required to update employee handbooks and practices to address new wage disclosure rights, new anti-discrimination protections, and, as applicable, expanded protections for pregnancy, parental leave, and the use of employer-provided sick time.

    If certain Minnesota DFL Senators have their way, Minnesota employers may need to pull out those ...

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    Posted in Labor & Unions

    Since the end of last year, we have been blogging about the rapidly-changing environment for labor relations and union organizing in light of new positions and rulings of the National Labor Relations Board.

    As a follow-up to our recent posts (see here and here) I'm sharing my top-five list of preparation steps for employers. Of course, every employer has to assess its unique risks of union organizing activities and make reasonable choices about how much and where to invest in preparation and prevention. When you make that assessment and those choices, however, keep in mind that ...

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    It seems as though every other week brings news of a new social media hack. Last week, Crayola had hackers post inappropriate content on its Facebook page, and the official Twitter feed of U.S. military's Central Command was briefly taken over by ISIS sympathizers. Such incidents inevitably bring with them bad publicity, as well as a panicked scramble by the hacked entity to try to regain control of its account.

    The problem is that having just one layer of password protection makes an account ripe for hacking. A potential hacker can either guess or learn the answers to secret questions to ...

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    A new year may bring new employment chances for Minnesotans with criminal records. Minnesota's new Second Chance law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of ones criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged ...

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    As we all get started on our New Years resolutions, employers should add one more to their list revising any email policies. In the waning days of 2014, the National Labor Relations Board (NLRB) issued an important email ruling that affects all employers, whether unionized or not. In the Purple Communications case, the NLRB held that non-management employees with access to their employers email system have a presumptive right to use that system during non-working time to communicate about union organizing or about other topics related to improving their wages and working ...

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    Posted in Labor & Unions

    Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for ...

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    Posted in Hiring & Firing
    If you are like many employers, you use an online job application or are considering switching to an online process. Online applications have many benefits, and there are numerous vendors prepared to help you set up an online site, populate it with forms, and set up applicant tracking and background check processes. Employers should be wary, though, of adopting stock background check forms provided by vendors. However well-intentioned, vendors do not always provide stock forms that comply with the federal Fair Credit Reporting Act (FCRA) or other applicable laws.
    A recent ...
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    The National Labor Relations Board has been busy this holiday season. In the last few weeks, the Board has pushed ahead with its quickie election rules and changed the analysis it uses to determine whether to assert jurisdiction over faculty at religious institutions of higher education, and whether faculty members are managerial employees with a protected right to unionize. In addition, the Board ruled earlier this month that employers must generally permit employees to use company email systems for a variety of protected labor law activity, including union organizing. Then ...

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    For the uninitiated, Dropbox and other similar tools such as SkyDrive, Google Drive, or Cubby allow a user to log in to an account, upload documents or files to the cloud, and then access or download them from any device, anywhere at any time. Users can sync folders across devices and share or sync files with others.
     
    Chances are, more than a few of your employees have discovered the ease and utility of cloud-based storage and file sharing tools. They are incredibly useful. But, along with the upsides that these tools offer like increased efficiency and team collaboration they also ...
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    2014 has been a big year for pregnancy protections in employment law. In May, Minnesota enacted a new pregnancy accommodation law, and in July the federal Equal Employment Opportunity Commission (EEOC) issued an updated pregnancy discrimination guidance document. Developments in this area are set to continue in the upcoming year. Last week, the U.S. Supreme Court heard oral arguments in the Young  v. UPS case a highly watched case involving an employers potential duty to accommodate pregnant workers under the federal Pregnancy Discrimination Act (PDA). It is well-settled ...
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    Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labors regulatory agenda that you will want to track:


    We've been on the look-out for proposed revisions to the Fair Labor Standard Acts (FLSA) white collar exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to modernize and streamline the existing regulations and increase the minimum salary for the white collar exemptions. The Department of ...

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    On Monday, the current Ranking Member of the U.S. Senate Committee on Health, Education, Labor and Pensions (and chairman in the next Congress) Lamar Alexander issued a report critical of the Equal Employment Opportunity Commissions (EEOC) litigation tactics and management. Among other concerns, the report found that:
    Todays EEOC . . . is pursuing many questionable cases through sometimes overly aggressive means and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOCs litigation tactics to be so ...
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    On Monday a federal jury in California awarded $185 million to a former AutoZone store manager who alleged that throughout her employment she had been discriminated against, demoted, and ultimately terminated because of her gender and in retaliation for complaining about discrimination. Rosario Juarez worked at an AutoZone retail store in San Diego from 2000 to 2008. Although she received promotions and advanced in positions within the store, these allegedly occurred only after she raised complaints about disparate treatment of women employees. 

    After Juarez informed the ...

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    For the first time in weeks, online news reports have been relatively Ebola free. This week, the last Ebola patient in the U.S. was declared Ebola free and released from the New York hospital where he had been quarantined. There are currently no known Ebola cases in the U.S. 


    Nevertheless, I am continuing to field questions about how employers can keep their workplaces free of the potentially deadly Ebola virus. In addition to being concerned about their employees well-being, these employers are mindful that federal and state OSHA laws require employers to take reasonable ...

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    As we mentioned in a post last month, the EEOC has a clear agenda to target employer wellness programs. In our earlier post, we discussed two lawsuits against employers in Wisconsin. Now, the EEOC has set its sights on one of our local employers - Honeywell. Last week, the EEOC sued Honeywell over a wellness program that involves employees and their spouses being asked to participate in biometric screening and a determination of body mass index. According to the EEOCs complaint, employees who don't participate along with their spouses are assessed a surcharge of up to $500 on ...
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    Posted in Leave
    With the general election less than a week away, Minnesota employers need to be mindful of the states voting rights leave law. 


    In Minnesota, an employee has a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal leave, or vacation for voting leave. An employer who refuses, abridges, or interferes with an employees right to voting leave is guilty of a misdemeanor.

    Here are some suggestions on managing ...

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    In our modern, ever-electronic, workplace, it continues to become ever-easier for dishonest employees to help themselves to their employers most sensitive and valuable assets through wholesale electronic copying of confidential, proprietary, and trade secret information. A recent example is a case of a former employee of a large medical device company who was recently indicted for criminal charges for stealing, via a thumb drive, the company's trade secrets regarding the design of a balloon-catheter system. According to the indictment, the employee then left his ...

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    I love wellness programs. I am a sucker for discounts of any sort, and I especially like the idea of rewarding healthy behavior. My bicycle has a tag that logs my work commute when I pass the electronic stations throughout the Twin Cities, and I smile every time I hear its gratifying beep.

    So, I understand why employers like wellness programs. What's not to like about incentivizing healthy lifestyle changes while also lowering health insurance costs, decreasing absenteeism, and increasing productivity? As is so often the case, however, the devil is in the details.  If wellness ...

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    If you do business with the federal government, chances are that you're feeling weighed down by the various new requirements placed on you over the past year. We've discussed these requirements in past posts here and here. That's why you may be surprised to hear that the US Department of Labor's Veteran Employment and Training Service (VETS) published a final rule last week that actually makes something easier for federal contractors. The rule modifies and simplifies the reporting requirements under the Vietnam Era Veterans' adjustment Assistance Act (VEVRAA) for federal ...

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    If you're an Amazon Prime member or you've shopped online at Amazon lately, you've probably heard that Amazon launched a new TV series last week, "Transparent," about a 70 year old divorced father who announces to his children that he intends to transition from a man to a woman. The "Transparent" series is getting rave reviews and comes at a time of increased societal and legal focus on the rights of transgender individuals.


    Indeed, just before the launch of the "Transparent" series, the U.S. Equal Employment Opportunity Commission (EEOC) filed its first ever lawsuits alleging sex ...

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    Another Sunday has come and gone and with it, somewhat predictably, another Vikings loss. What's remarkable about this week, however, is that the team was without its star player, Adrian Peterson. Mr. Peterson has been barred from team activities pending the resolution of his criminal indictment for child abuse. Mr. Peterson has admitted to disciplining his 4-year-old son with a wooden switch and injuring the child in the process. The Vikings organization has been widely criticized for its initial response to Adrian Petersons indictment. The Vikings initially planned ...

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    Unless you were unplugged, you probably saw all the high profile names that made legal headlines last week. Included in that list was David Letterman. In a quick whirlwind of activity, a CBS intern filed a wage and hour lawsuit against CBS News and Letterman's production company, Worldwide Pants, only to drop the suit a short time later with a public apology. In the lawsuit, the CBS intern claimed that unpaid Late Show student interns were employees and that the failure to pay them wages violated wage and hour laws. The suit, had it proceeded, would have sought to recover back wages ...
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    I was sitting by a campfire last night and, although it was a beautiful night, I could not help but notice that there are signs of fall everywhere. The leaves are beginning to change, the evening air had a slight nip, and darkness arrived much earlier in the evening. These reminders of fall mean that, because of Minnesota's participation in Daylight Savings Time, we need to think about the semi-annual ritual of the changing of the clocks. Each spring we Spring Ahead by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each fall, when Daylight Savings Time ends, we Fall ...

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    Wage theft is becoming a popular phrase in the media. A New York Times article recently announced that More Workers Are Claiming Wage Theft. Other news outlets are using the phrase to describe lawsuits brought by workers of a wide mix of employers, ranging from Jimmy John's to NFL franchises. Wage theft even has its own website.

    At its core, wage theft is simply a catchphrase designed to draw attention to violations of wage and hour laws. The use of the term wage theft appears to be a relatively recent phenomenon. There were more references to wage theft in U.S. newspapers during the ...

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    Some popular online services made legal headlines this week. After years of litigation, a federal appeals court held that Yelp did not extort businesses by manipulating user reviews to coerce advertising purchases. While Yelp still faces other legal claims for false advertising and securities fraud, this case is significant given that Yelp's handling of user reviews has been widely criticized.

    While Yelp was presumably busy celebrating good news, the ride-sharing service, Uber, received bad news on its efforts to expand its services overseas. A German court banned Uber's ...

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    The National Labor Relations Board continues to focus on employer social media policies and employee discipline for online activity.  In a ruling this week involving Triple Play Sports Bar & Grill, the Board concluded that Triple Play unlawfully fired two employees for their response to a co-worker's Facebook post.  One of these employees had only responded to the post by clicking the Facebook like option on the post.  The Facebook post at issue related to the employer paying taxes, and the Board concluded the exchange about the post, including the like response, was a protected group ...

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    Last week we learned in Olson v. Push, Inc. that Minnesota's Drug and Alcohol Testing in the Workplace Act (DATWA) does not apply to a West Virginia employee working for a Wisconsin company. While at first blush this may seem like a no-brainer, there were facts in this case that made it a closer call. The plaintiff, Shawn Olson, applied for employment with Push while he was living in Minnesota. Push arranged for Olson to take a pre-employment drug screen, and for convenience sake, the test was arranged at a testing facility in Minnesota. Olson argued that because DATWA applies to employers ...

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    Posted in Leave

    When I conduct employment trainings, I often caution executives and managers to think before they email. In my experience, people tend to be more casual and to use poorer judgment when they email than when they write a memo or letter that, by its nature, seems more formal.

    Now, it turns out, that you better be careful before you snail mail too. In what some commentators are calling a game changing decision, the U.S. Court of Appeals for the Third Circuit recently held that a former employee could proceed to trial in her lawsuit under the federal Family Medical Leave Act (FMLA) based on her ...

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    Significant electronic data breaches made headlines again this week. Supervalu announced that millions of customer credit card numbers were stolen at various stores. In addition, one of the nations largest hospital chains - Community Health Systems - announced that the personal data of up to 4.5 million patients was taken when hackers bypassed the company's security measures. These latest breaches come at a time when a private research report is indicating that the medical sector has had more data breaches in the last two years than military and banking sectors combined. As we've ...
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    I recently read an article about how college football recruiters are using twitter to screen out potential players for their teams. Its becoming a somewhat common practice for recruiters to monitor the twitter accounts of high school players that they are scouting to see whether any red flags are raised. Based on some of the inappropriate tweets, colleges have decided not to pursue particular players and, in at least one instance, have even withdrawn a scholarship offer. Some of these college coaches are encouraging high school coaches to teach players that they need to be careful ...

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    As a follow up to our last Week in Review, wage and hour claims are still making headlines this week. Another technology company, SpaceX, has been sued for allegedly failing to provide employees with required breaks or to properly pay employees for off the clock work.  SpaceX also faces a separate lawsuit alleging that it failed to give former employees proper advance notice of their layoffs under California law.  Another big legal headline this week is the announcement that a federal judge has rejected a proposed $325 million settlement agreement between Apple, Google, Adobe, Intel and ...

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    The heavily regulated world of companies conducting business as federal government contractors is becoming even more heavily regulated. President Obama recently issued another new executive order setting out additional labor-related requirements for government contractors and subcontractors. The most recent executive order issued by President Obama, on July 31, 2014, includes these additional requirements for companies engaged as contractors or subcontractors for the federal government:   
    Paycheck Transparency:  Contractors are now required to provide additional ...
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    Its been an interesting week on the wage and hour legal front. One of the big names in social networking, LinkedIn, made headlines this week when the U.S. Department of Labor announced a settlement of allegations that LinkedIn failed to properly record, account for, and pay certain employees for all of their hours worked. You can read the link below for lessons learned from this settlement. In other news, a federal judge ruled that critical federal government employees who worked during last year's government shutdown may be owed additional pay under the Fair Labor Standards Act ...

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    Businesses that support the sharing economy continue to grow, as evidenced by this week's news headlines. Airbnb announced it is partnering with Concur, a commonly used expense account management software. This partnership, which will include Airbnb as an expense booking option within Concur's software, is expected to introduce Airbnb to the business traveler market. Airbnb is also making legal headlines, as users of the site expose legal loopholes.  Read the link below to learn how a thirty day Palm Springs condo rental through Airbnb evolved into renters claiming tenant rights ...

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    Dust off your handbooks and rethink your employment policies the EEOC has just announced some significant changes in how it is going to investigate and litigate pregnancy discrimination claims.

    In its first comprehensive pregnancy guidance update in thirty years, the EEOC issued new pregnancy discrimination guidance in mid-July. The updated guidance is effective immediately, superseding the prior guidance and addressing the application of many laws passed since 1983 - including the 1990 Americans with Disabilities Act (ADA) and the 1993 Family Medical Leave Act (FMLA) - to ...

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    Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn't only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year.  And, for ...

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    Adjunct faculty members at the University of St. Thomas Monday voted overwhelmingly against union representation by the Service Employees International Union (SEIU) Local 284Gray Plant Mooty's Labor Law and Higher Education Practice Teams served as labor counsel to St. Thomas in the union representation process. Since the union filed its petition for an election on May 23, GPM has been working intensively with the General Counsels office at St. Thomas to advise on the labor law, handling matters before the National Labor Relations Board (NLRB), assisting the university's ...

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    Some high profile companies, including two technology giants, made headlines this week after former employees filed lawsuits against them alleging discrimination and harassment.  The case against Yahoo is likely to be particularly interesting, because the executive accused of harassment is alleging that she's being defamed by false allegations. You can read more about each of these lawsuits below, and you can revisit one of our recent prior posts for more information on the same topic.  In other news from Silicon Valley, Google is making headlines this week for its work on ...

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    Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...

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    Last week a New York federal court certified a class of approximately 250,000 African-American job applicants in a race discrimination case against the U.S. Census Bureau. The plaintiffs allege that they were unlawfully excluded from consideration for door-to-door census positions due to arrest records that never resulted in convictions. In other instances, applicants were allegedly rejected based on convictions for minor crimes or convictions that were so old they should not have been considered. The lawsuit alleges that the Census Bureaus practices disparately ...

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    According to an article in The New York Times this week, high level executives make up the majority of tablet users in the workplace. That may change, though, as in the workplace tablet usage increases.  It was predicted this week that, during 2015, manufacturer shipments of tablets will exceed shipments of desktops and laptops. This suggests more tablet use in the workplace going forward. While this is good news for the tablet industry, employers should be mindful of new data security issues in the headlines this week. A cyber forensic expert revealed this week that Google Glass wearers ...

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    We hope you had a happy 4th of July weekend!  Last weeks news included more employees making headlines for their misuse of social media.  The links below highlight three cases in which employees social media activity or misuse of company computers led to a loss of employment or litigation.  For other recent headlines on the same topic, check out this link to our Week in Review from a few weeks back.  These news stories are great reminders of why all employers should have a robust social media and computer usage policy in place.  So, as you're digging back into your work post-holiday, consider ...

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    On August 1, 2014, Minnesota's new minimum wage law takes effect. The new law changes the states minimum wage requirements in several ways, including new definitions of large and small employers, progressively increasing rates over time, and indexing to inflation.

    Minnesota sets its minimum wage based on the size of the employer as determined by gross sales. Under the new law, a large employer is one that has gross sales over $500,000 in annual business. Small employers are defined to have gross sales under $500,000 in annual business. Prior to the change, the gross sales ...

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    Technology's impact on privacy took center stage in news headlines this week. The New York Times and National Public Radio (NPR) both reported on alternative software tools to track employees in the workplace - one tool identifies inside security threats and another tracks employee productivity. Our blog post earlier this week also discussed this issue, highlighting both upsides to employee monitoring and some of the downsides and risks. In addition, there was big privacy news coming out of the United States Supreme Court this week. In a highly anticipated ruling, the Court ruled ...

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    Technology increasingly creates opportunities to monitor employee performance and workplace behavior. Monitoring is generally considered to be a tool that is likely to increase employee productivity and performance. Interestingly, though, the New York Times recently highlighted a Harvard Business School paper on the topic describing what it calls the Transparency Paradox. 

    Researchers conducted an experiment at a large factory in China, surrounding four of its 32 assembly lines with curtains to give a measure of privacy to the four lines. After five months, researchers found ...

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    Can you imagine receiving just a few work-related emails a day? Click the link below to read about the innovative communication solutions that companies are exploring to try to reduce the biggest distraction for their employees the volume of their inbox. Speaking of distractions, as we mentioned in last week's Week in Review, were in the midst of the 2014 World Cup. Much like March Madness, the World Cup is a month-long event that can create productivity concerns for employers. Since the 2010 World Cup, technology advances have created greater challenges for employers who seek to ...

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    June 2014 is Lesbian, Gay, Bisexual, and Transgender (LGBT) Pride month, and President Obama is set to mark the month by using his pen and phone approach to expand workplace protections for LGBT individuals. Frustrated with the inability to get various employment-related laws through Congress, President Obama has taken to using his executive authority to make progress where he can primarily with federal government contractors.  So far this year, President Obama has issued executive orders raising the federal minimum wage for federal contractors and requiring contractors to ...
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    Move over World Cup. Discipline based on employee social media activities is taking center stage this week. Well, maybe the World Cup has a few more headlines, but you can follow the links below to read four articles from this week about employees getting into employment trouble based on their social media activity. Also, a recent survey shows that 70 percent of employers have disciplined employees for on-the-job misuse of social media. One lawyer is making news, though, for his drastic protests of workplace discipline based on employee social media postings.  

    Don't worry . . . we ...
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    In a recent Week in Review post, we referenced a Wall Street Journal article about Zappos.com. It has abandoned job postings in favor of a radically different approach. Instead of posting job descriptions at online career sites, Zappos will maintain a social media network of Zappos Insiders. Through social media, people interested in working at Zappos will network and connect with current employees and provide (sometimes public) information about their skills and interests in hopes of being tapped to work in a specific job. As the Wall Street Journal article points out ...

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    For months, the discussion about cryptocurrency - primarily "Bitcoin" - has steadily increased in technology news. This week, Dish Network became the largest company to accept Bitcoin payments, following Tesla, Virgin America, and Overstock.com. Click the link below to read about how legislators and regulators are working to find a way both to classify and regulate this bold new world of virtual currency. Also, if trying to understand cryptocurrency makes your head hurt as much as mine, check out the link below to the high-tech headband that de-stresses your brain. At the retail ...

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    As if to accentuate the timeliness of last weeks post on the surge in non-traditional union organizing, adjunct faculty organizing in the Twin Cities has been in the news again this past week. The Service Employees International Union, or SEIU, is targeting additional local institutions for adjunct faculty organizing. In addition, the Macalester College adjunct faculty vote has been postponed, with union organizers claiming both sides need more time to consider the issues underlying the vote. Several outspoken adjunct from Macalester have voiced opposition to the ...
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    How did you commute to work this morning?  Google's self-driving car prototype unveiled this week may soon change your answer.  Google is hoping that, within the next decade, these cars may alleviate the most miserable part of the day for many Americans - their drive to and from work.  Not only must Google win over American drivers, however, it also must woo the regulators in all 50 states. With only three states having laws on the books that permit some version of autonomous vehicles on their roadways, these cars are likely to require legal changes in addition to changes to the rules of the ...

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    While union membership has declined precipitously over the last few decades, union activity is now popping up in many new sectors.  From 1983 to 2013, according to the Department of Labor, union membership dropped from over 20% of the U.S. workforce to a little more than 11%. The public sector, particularly in the areas of education and protective services, still has the highest unionization rate.  In the private sector, the areas of utilities, transportation, and telecommunications represent the highest rates of unionization.

    In recent years and months, however, we've seen a growth ...

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    Posted in Discrimination

    If Minnesota employers recently detected vague but ominous tremors beneath their feet, it may have resulted from very recent activity coming out of the Minnesota state capitol. With one very short amendment to the Minnesota Human Rights Act (the "MHRA") that was signed into law by Governor Dayton on May 13, the legal exposure landscape for employment discrimination claims may have shifted radically. Specifically, the MHRA was amended to now grant a right to a jury trial for violations of that law.

    As most employers are aware, the MHRA is the Minnesota statute that prohibits ...
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    It seems that society may be overdosing on public sharing through social media platforms.  According to this week's headlines, the use of social login services has peaked, the controversial, anonymous app Secret is gaining users, and functional fashion that can disable your gadgets is expanding.  Speaking of oversharing, we are approaching the long Memorial holiday weekend which means lots of time spent with family and friends.  Whether you choose to share in person, through social media, or anonymously, have a safe and enjoyable holiday weekend!

    Technology and the Workplace
    Too ...

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    Large internet companies dominated the legal news this week. In a case against Google, the European Union's top court ruled that citizens may compel search-engine owners to remove certain types of personal information included in search results of the citizens name. While this ruling currently has no direct impact on privacy laws in the United States, the practical implications of the ruling for Internet companies are interesting and the ruling could potentially be used by practitioners outside the European Union to try to influence courts in other jurisdictions. Closer to ...

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    This week, the Minnesota Governor signed the Women's Economic Security Act (WESA) into law. The WESA makes a sweeping variety of changes and additions to Minnesota law aimed at protecting women's economic security. These changes include, among others, modifications to the length of Minnesota parental leave, a new required handbook notice regarding employees freedom to discuss wages and benefits, and the addition of a new protected class under the Minnesota Human Rights Act.  Some of WESAs provisions are effective immediately and others are effective later this year ...
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    Personal wearable technology is all the rage, but can wearable technology also increase employee productivity? A study out this week found that wearable technology in the workplace increases both employee productivity and job satisfaction.  Click the link below to read about how wearable technology may benefit and change your workplace.


    Also, in our tracking of There's an App for That, we feature a refrigerator that lets you know when you are out of milk, sunglasses that text you when you leave them behind, and a robotic lawn mower.  If you're late with your Mother's Day gift, these would ...

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    Employers see social media as a new and different form of communication by their employees, requiring careful consideration and special policies. But according to a recent decision from a National Labor Relations Board Administrative Law Judge, online communications are analogous to a form of communication that has been in workplaces for decades  water-cooler talk.  In The Kroger Company of Michigan, the judge ruled that employers may run afoul of Section 7 of the National Labor Relations Act ("NLRA") by placing certain limitations and burdens on their employees' online ...
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    The assault on internet security continues to fill news headlines this week. On the heels of the Heartbleed bug, Microsoft announced this week that a security vulnerability exists in all versions of Internet Explorer, with no known fix. This vulnerability is especially concerning for employers, who often do not control the browser choices of employees. Also, you can read below to discover the various ways that security breaches can affect our everyday lives, including jamming up traffic and "war driving" at your favorite free wi-fi spot.
     
    Recent Week in Review topics are also back ...

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    By now, you've probably heard of the audio recording of racist statements by L.A. Clippers owner Donald Sterling that has gone viral. Yesterday, the NBA commissioner announced that Sterling will be banned for life from the NBA and fined $2.5 million, the highest fine permitted by the NBAs constitution and bylaws. It also appears that Sterling stands to lose his ownership stake in the Clippers. 

    Sterling's statements were recorded by a former girlfriend during a conversation in Sterling's home and later leaked to TMZ. There has been near-universal support for the NBAs swift and ...

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    Are you working in your pajamas right now? Or from the beach? If so, you may be one of the many Americans who telecommute. This week, a Forbes article discussed the rise of telecommuting, the reasons telecommuting is becoming more common, and why it's not for everyone. Meanwhile, a federal appellate court held that telecommuting may be required as a form of reasonable accommodation for a disabled employee. The court had previously held, back in 2004, that telecommuting was not a form of reasonable accommodation, but it explained that the technological evolution of the last decade now ...

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    The Equal Employment Opportunity Commission (EEOC) has recently issued an informal guidance on the issue of religious dress and grooming. The guidance comes in wake of several suits accusing employers of religious discrimination for refusing to accommodate certain types of religious dress or grooming.

    The EEOCs Religious Garb and Grooming in the Workplace:  Rights and Responsibilities guidance uses a question and answer format and covers a wide range of topics. In particular, the guidance notes the following:
     
           All employees covered by Title VII of the Civil Rights Act of 1964 ...
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    Employers and their IT departments are always looking for ways to protect their data in this age of constantly changing technology.  One new form of protection that may become available to employers is a "kill switch" on their employees' smartphones.  A kill switch will allow a phones owner to remotely delete data and deactivate smartphones after a theft or loss. This week, Apple, Google, Samsung, Microsoft, and the five largest U.S. cell carriers voluntarily agreed to include the kill switch technology on all of their smartphones manufactured for sale in the U.S. after July 2015.  There ...

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    Posted in Immigration

    As we previously predicted, the United States Citizenship and Immigration Services (USCIS) received more new H-1B petitions during the first week of April 2014 than there are visa numbers available for Fiscal Year (FY) 2015. USCIS received approximately 172,500 petitions for FY 2015, which is more than double the annual limit of 65,000 regular H-1B visas and the additional 20,000 visa numbers reserved for individuals who hold advanced degrees from U.S. institutions.

    USCIS has already conducted a random computer-generated lottery of all of those petitions to determine which ...

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    A new labor agreement reached in France requires employers in certain technology and consultancy sectors to take steps to ensure employees are not plugging into work on their free time. France has had a 35-hour workweek for several years, and many believed it was being intruded upon by frequent out of office distractions caused by email and other technology. To combat this, French employers in these sectors are required to take steps to make certain that employees completely disconnect outside of their working hours. 

    The invasion of work into personal lives is an international ...
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    With technological innovations appearing daily in the workplace, employers must continually evaluate how best to proactively prepare for and respond to these changes. As you do your planning, you might want to check out the article below on how companies can learn from Google's example when it comes to humanizing technology in the workplace. This week's headlines also discuss wearable technology and how businesses can prepare for this new workplace phenomenon, including by revising their BYOD policies. 


    Technology and the Workplace
    How Google Humanizes Technology in the ...

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    The Star Tribune is reporting that Minnesota legislators have reached a deal that will increase Minnesota's minimum wage for most employers to $9.50 per hour by 2016. When the proposed law is passed and signed by Governor Dayton, Minnesota will join 21 other states and the District of Columbia in having a minimum wage that exceeds the current federal law minimum of $7.25 per hour. Currently, the state of Washington has the highest minimum wage, coming in at $9.32 per hour.  The U.S. Department of Labor provides a summary of state minimum wage rates on its website: 

    In addition to state wage ...

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    Not all technology-based changes in the workplace involve social media and smartphones. This week's headlines and blog posts highlight other ways in which technology is changing the way we work.  For example, employers are currently facing the decision of how to approach e-cigarettes in the workplace, and some employers are skipping the booth-filled convention centers and instead opting for virtual career fairs to find top candidates.  We also have linked to an article below about employees who put your cybersecurity at risk and how to deal with them.  Finally, learn how to craft email ...

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    There has been a storm of comment and controversy since the National Labor Relations Board ruled last week that scholarship football players at Northwestern University are employees of the school who have the right to unionize under the federal labor law governing private sector employers. The College Athletes Players Association (CAPA), the union seeking to represent the players, is moving ahead full-steam with a vigorous persuasive campaign to convince the 87 Northwestern football players to vote for union representation when the NLRB conducts its election soon. On its ...
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    This weeks news included advice to employers on tackling mobile device issues in the workplace while, on other fronts, Division I football players tackled labor laws. On Wednesday, the Chicago regional office of the National Labor Relations Board ruled that Northwestern University football players are employees under federal labor law and, therefore, can unionize. Northwestern University has announced plans to appeal, and well be monitoring this legal development and its implications closely. Meanwhile, employers continue to struggle with employees using mobile devices ...
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    Earlier this month, President Obama directed the U.S. Department of Labor to update the federal overtime pay regulations by revising the salary component of the executive, administrative, and professional exemptions.  To qualify for these overtime pay exemptions (a.k.a. the white collar exemptions), employees must receive a minimum, guaranteed weekly salary of at least $455 and satisfy a duties test that requires them to primarily perform exempt-level tasks. The Presidents directive was aimed only at the salary component of the white collar exemptions. The currently ...

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    Overtime pay is a big theme this week following President Obamas directive that the U.S. Department of Labor work to update the existing federal regulations on overtime pay. The most prominent change that is expected is an increase in the $455 minimum weekly salary that must be paid for an employee to be exempt from overtime pay requirements under federal wage and hour law.  Before any overtime pay change can be finalized, the Department of Labor must complete a rule making process that could take a year or longer.  Speaking of overtime, March Madness has begun once again.  Check out the links ...

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    Across the country, federal government contractors are preparing to meet next weeks deadline for starting to comply with new affirmative action rules.  Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans.  Those new rules become effective next week on Monday, March 24, 2014.  Some of the new requirements imposed by the rules have a March 24th compliance deadline.  Others can wait until a contractor currently in the middle of its affirmative action plan ...

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    Week after week, the blogosphere is full of discussions about new developments in the law involving social media. This week, the Equal Employment Opportunity Commission joined the conversation by holding a public meeting to discuss the interplay between social media and employment discrimination. The meeting provided helpful tips to employers, such as how to minimize the risk of a discrimination charge when conducting social media background checks. And, while we're on the topic, you can click on the link below to see if your social media policy is keeping up with all of the recent ...

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    If you work in HR or Student Services for a college or university, you're likely well aware of the Campus SaVE Act and the fact that it has added a long list of items to your to do list. When the law was first passed a year ago, its March 2014 effective date seemed so far away. Time sure flies! Not only is the Act going into effect, the U.S. Department of Education recently issued draft regulations on the law. The regulations wont be final for some time, but they will provide additional guidance to institutions on complying with the Act.
     
    The Campus SaVE Act amends existing law to promote ...
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    Some things should be kept private. This week, the blogosphere provided several anecdotal reminders of this principle for both employers and employees. As we noted in an earlier post, one former employee learned the hard way not to violate a settlement confidentiality provision when his settlement unraveled as a result of a Facebook post. You can also read on below to learn more about the potential future of employee privacy law. Also, check out the link below about when and how employers can access an employee's social media account used for business purposes. Finally, we have ...

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    Confidentiality clauses are a standard provision in most agreements settling an employment dispute. Last week, a former preparatory school administrator learned the hard way that these provisions matter to employers and that violating a confidentiality clause can be costly.

    An appeals court in Florida ruled last week that a Facebook post made by the former school administrators daughter violated the confidentiality clause in his settlement agreement with his old employer. As a result, the former administrator forfeited $80,000 of his settlement. 

    The former ...

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    In this era of hyper self-promotion and cyber networking, through the wonders of social media, former employees are commonly creating some of the most incriminating evidence establishing their violation of non-compete and non-solicitation agreements. When employees switch jobs, they now frequently broadcast that changed status to all of their contacts through social media platforms, such as LinkedIn and Facebook. Among those contacts, however, may be a significant number of customers or clients of their now former employer. If the employees previously signed ...

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    Facebook, iMessages, WhatsApp, Snapchat, Twitter, Instagram, Telegram, Confide, MessageMe, Popcorn, Glide, Tango, Viber, Whisper. . . .  According to a recent post on the New York Times Bits blog, these are just some of the many different ways to message someone from your smartphone. So, what does this mean for employers? Among other things, it's probably time to update your technology and social media policy. Yes, again. With all of these mobile methods of communication, employers need to be aware that company information is likely traveling outside of old communication methods ...

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    R u liable 4 your employee's txt msg?  In some situations, the answer may be yes. Two courts reviewed employee texting issues this week. The first court reviewed whether an employer can be liable for an employee's unauthorized disclosure of confidential health information via text message.  The second court addressed whether a text message to a supervisor can qualify as a request for leave under the Family Medical Leave Act. These cases and the other articles linked below provide valuable insights for employers in determining best practices related to workplace ...

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    Posted in Discrimination

    I have not followed NFL football for many years, but the recent NFL report about the Miami Dolphins definitely caught my attention. The report, prepared for the NFL by a New York law firm, concluded that Richie Incognito and other Miami Dolphin players inappropriately bullied and harassed offensive lineman Jonathan Martin through improper physical touching and by persistently taunting him with sexually explicit remarks about his mother and sister, and racist and homophobic slurs. Martin abruptly left the Miami Dolphins in 2013.

    Unfortunately, the behavior described in ...
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    The flowers and chocolates that will be delivered to employee desks this week for Valentine's Day are a great reminder for employers to think about the best practices for approaching workplace romances. For more information on that front, read on below.  Also, if this post is a reminder that you are behind on your Valentine's plans, check out the apps below for some ideas.

    Meanwhile, love between lawmakers and technology is not in the air in Washington. A proposed bill to ban in-flight phone calls passed a committee vote this week and will now head to the House floor. In other news, a U.S ...

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    The Obama Administration announced this week that it will give employers with more than 50 but less than 100 employees one more year to comply with the Affordable Care Acts employer mandate. (But beware: You cant lay off workers to ensure that you fall below the 100 employee mark!) That means that these employers have until 2016 to provide insurance to full-time employees before being subject to any penalties for non-compliance.

    While employers covered by this extension may be breathing a sigh of relief, they shouldn't forestall putting in place one of the key action items for ACA ...
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    Last week, the Northwestern University football team shook up the playbook by taking the unprecedented step of petitioning the National Labor Relations Board for a union election. The result to be determined will have a significant impact on the relationship between higher education institutions and their student-athletes, as well as potentially many other students who receive aid in consideration of services performed to the benefit of the schools, such as graduate assistants. 
     
    Under the leadership of star quarterback Kain Colter and with financial support from the United ...
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    As the world prepares this week for the start of the 2014 Winter Olympics, employers are being cautioned to address technology-induced liability. Many Fortune 500 companies have adopted policies banning employees' use of mobile devices while driving for work to avoid liability for a traffic accident caused by distracted-driving. The importance of workplace internet policies is also in the news this week, with an emphasis on policies that address an employers duty to report child pornography on a work device. You can read below about how to fight against technology-related ...

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    As Americans gear up for Super Bowl XLVIII, we've gathered some articles below to help you prepare for the big game and to consider the games potential impact on the workplace. You can read below about how one employee's team pride led to him being fired and about how big Super Bowl parties on Sunday night might lead to low workplace productivity on Monday. For those of you who haven't been following professional football throughout the season, be sure to check out the Super Bowl talking points below that you can use around the office. We also have all the app links below that you'll need for the ...

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    Posted in Immigration

    Last year U.S. Citizenship and Immigration Services (USCIS) received more than 124,000 applications for new H-1B specialty occupation visas for foreign professionals during the first week of April. As a result, USCIS implemented a computer-generated lottery system to allocate the 65,000 regular H-1B visas and the 20,000 additional H-1B visas reserved for foreign nationals with a masters degree or higher from a U.S. institution. Although there were predictions of high demand in 2013, some employers were not prepared given that the cap had not been reached for many months in the two ...

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    Anything you say on Facebook can and often will be used against you in a court of law. Technology has not only changed the workplace; it has also changed employment lawsuits. We've provided a link below to an article discussing how data from smartphones and social media can take center stage in a workplace harassment lawsuit and methods for mitigating legal risks. You can also read on below about how electronic metadata drastically impacted a non-compete case. Speaking of technology having a drastic impact, there's also a link below to an app designed to help you fight for immigration ...
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    Posted in Health Care
    Employers are continuing to feel the impact of and to respond to the federal Affordable Care Act. Just today, it was reported that Target Corporation will be no longer offer health insurance benefits to its part-time employees. The company explained that the change was related to the new health care landscape, low enrollment of part-time workers in its health benefits, and the ability of part-time workers to obtain insurance through health care exchanges created under the ACA.   
    In other ACA news, the Internal Revenue Service has announced that it will delay enforcement of the ACAs ...
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    This week's headlines charged employers with preserving and protecting data in the workplace. This advice is timely given that this week is Tax Identity Theft Awareness Week, a time when employers are reminded to safeguard employee social security numbers to reduce identity theft risks. In other news, we've provided links below to the top 10 electronic discovery developments and trends from the past year. At the top of the list are the growth of Bring Your Own Device (BYOD) policies in the workplace and how work-related text messaging is causing courts to require employers to preserve ...

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    Alabama State University is taking flak over the employment agreement it recently inked with its new president, Gwendolyn Boyd. No one seems concerned with the size of Dr. Boyd's salary and benefits. It is the clause restricting her ability to have slumber parties that is turning heads. The agreement provides that so long as Dr. Boyd is president and a single person, she shall not be allowed to cohabitate in the presidents residence with any person with whom she has a romantic relation.

    Given the role college and university presidents play in wooing big donors and serving as chief ...

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    Brrrrrrrrrrrrrrrrr . . . it's cold out there! The recent cold snap that has swept the nation is affecting the workplace and technology. The cold weather serves as an important reminder for employers to have an up-to-date severe weather policy. In addition, before you email your employees from your smartphone at the bus stop to tell them that they don't have the day off work, check out NPR's reminder that your phone doesn't like the cold weather any more than you do. But don't worry; technology won't completely fail you this winter. We have a link to the top winter weather apps. Stay ...

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    While many Toronto residents spend their time wincing at the infamous antics of their elected (and possibly soon-to-be reelected) mayor, Rob Ford, I've been imagining what a Minnesota employer would do if he was its employee or, worse yet, a supervisory employee - not elected by the people. Are you cringing yet?

    Fire Him! would likely be a common refrain. But for what exactly? His admitted use of crack cocaine? The death threats? The sexual comments? Knocking down a councilwoman and the viral video aftermath? There seems to be so much to choose from. Even when a termination ...

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    Another new year has arrived.  Perhaps you have promised to make it a year of getting organized, getting fit, or giving more to charity.  On the technology front, social media is promising to make it a year of evolving workplace privacy law.  Legislative bodies, courts, and administrative agencies are expected to consider a number of interesting legal issues, such as employer access to employees' or applicants' social media and email accounts, administrative agencies' access to employers' email servers, and employees' rights to communicate online about their terms and conditions of ...

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    Target Corp's data breach has been big news this holiday season, with as many as 40 million holiday shoppers across the nation exposed to potential credit and debit card fraud. According to the Identity Theft Resource Center, which tracks U.S. data breaches, the Target breach was one of over 600 data breaches in 2013. In our increasingly digital world, data breaches are a growing risk with many potential causes, including system failures, human error, employee misconduct, or outside theft. 

    In the wake of the Target incident, many companies will be setting a 2014 new years resolution ...
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    The holiday season is a time for reflection, including reflection on our technology habits. Many individuals are aiming to be truly home for the Christmas holiday by engaging in digital detox plans and setting their smartphones and other mobile devices aside to spend time with family and friends. Disconnecting from workplace technology during non-work hours is also becoming a trend at other times of the year, and many employers are encouraging this trend. Another take-away from this holiday season may be to reflect on what your shopping habits can teach you about hiring ...

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    Posted in Wage & Hour

    I sleep with Siri, and I'm not alone. According to a Pew Internet and American Life Project study, 44% of Americans sleep with their cell phone, many of which contain a work email account. Like that critical mass, I want to be connected and to be able to respond to a client if they email at 11:59 p.m. Because attorneys are exempt under wage and hour law, they don't have to be paid extra above and beyond our salary for emailing in the wee hours. That's not, however, the case with non-exempt employees. For employers that don't have effective policies and policing of after-hours technology ...

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    Your company holiday party can be added to the list of things impacted by technology. In addition to the risk of alcohol-induced harassment, injuries, or property damage, employers should be mindful that technology and mobile devices permit employees to easily broadcast holiday party activities through social media. Of course, company parties are not the only thing changed by technology in the workplace. Technology has also transformed workplace communication, and, to make this a positive change, employees must use the right technology in the right ways. Outside the ...
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    A recent trial experience provided an extraordinary lesson on the significant legal exposure employers face when hiring away employees from a competitor. I recently completed a jury trial in which my client obtained a $22.7 million verdict against a competing company that had hired away two of my clients employees who had secretly taken numerous computer files belonging to my client and then used them for the benefit of their new employer. Although there ended up being many actions of the new employer to criticize, I believe that the most egregious one was the new employers failure to ...

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    You may have thought you'd seen it all, but technology continues to change the world, the law, and the workplace. The headlines were abuzz this week with Amazon's announcement that it will soon be ready to use drones to deliver packages within 30 minutes of an order. However, the announcement has produced skepticism based on logistical and legal barriers. In other news, the U.S. Court of Appeals for the Ninth Circuit will become the first federal appeals court to live stream oral arguments in all en banc cases starting this month. In the workplace, employers are looking for ways to use ...
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    The Supreme Court announced last week that it will hear two cases in which for-profit businesses are challenging the Affordable Care Acts (ACA) contraceptive mandate on freedom of religion grounds. The key issue before the Supreme Court will be whether or not corporations have religious rights.

    The two lawsuits at issue were brought by Hobby Lobby, a company owned by Evangelical Christians, and Conestoga Wood Specialties, a family business owned by devout Mennonites. In both cases, the companies claim that the ACAs mandate that all group health plans provide and pay for all ...
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    Social media and technology seem to be doing more harm than good in the workplace this week. A new study suggests that some employers may be using Facebook profiles to discriminate against job applicants based on legally protected information. Other employers have expressed concern about employees' overuse of social medial during the work day. The challenges also extend beyond the workplace walls. For example, employees who are non-exempt under wage and hour laws can bring lawsuits for minimum wage or overtime compensation if not properly paid for work done outside of the ...
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    As turkeys and pumpkin pie ingredients fill grocery carts across America, employee privacy issues fill the workplace.  A recent survey shows that younger employees, ages 18 to 25, are more concerned about their privacy in the workplace than their older counterparts.  Meanwhile, some employers are beginning to use surveillance cameras in the workplace to improve safety and efficiency, the way coaches use game film to improve their sports teams performance.  But, back to Thanksgiving.  In the holiday spirit, were providing you information about apps to help you stuff ...
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    Posted in Wage & Hour

    Many employers have implemented direct deposit payroll systems to reduce the transaction costs associated with paper payroll checks and the risks of the loss or theft of paper checks. A payroll card is an increasingly popular method used by employers to provide for the direct deposit of wages, particularly for employees without a deposit account at a financial institution. A payroll card is a debit or prepaid card onto which the employer loads an employees wages. The employee may then access those wages through withdrawals of cash at an ATM machine or by making purchases using the ...

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    This week, Dropbox unveiled its new "Dropbox for Business" initiative, which gives employees a greater ability to establish digital work-life balance.  The product includes two data folders - one for business data and one for personal data so that businesses and workers have the ability to segregate digital work and personal data.  The Dropbox announcement came on the same day that Amazon unveiled a similar product. Airbnb also frequented the headlines this week, both for its new, streamlined app and for the scrutiny its vacation and home rental business is under from regulators.  ...

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    Last Thursday, November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64-32. Similar to existing federal nondiscrimination laws, ENDA would be enforced by the EEOC and would prohibit most employers with 15 or more employees and labor organizations from taking adverse employment action or treating employees differently because of their actual or perceived sexual orientation or gender identity. Although this is a significant step forward for this bill, ENDA still faces tough opposition in the GOP-led House of Representatives, where ...
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    From communication methods to office space, technology continues to affect workplace norms. During the week of November 4th, for instance, the U.S. Supreme Court heard oral arguments in a case involving the line between technological gear and clothing in the workplace. In the case, steelworkers are seeking to be paid for the time spent putting on flame-retardant jackets and pants, protective leggings, Kevlar sleeves, gloves, steel-toed boots, hard hats, safety glasses, earplugs, and hoods. Under the federal wage and hour law, an employer must pay employees when they engage in a ...

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    The National Labor Relations Board (NLRB) appears ready to extend its jurisdiction over certain private and religious schools that were previously thought exempt from the NLRBs reach. If it does assert jurisdiction in these cases, the NLRB will act to protect union efforts to organize the schools faculty and other workforces. And just as significantly, an assertion of NLRB jurisdiction over these schools will clearly usher in the potential for direct NLRB involvement in deciding school policies.
    The NLRB has several cases involving religious schools lined up for review, the ...
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    In the last few years, driving safety initiatives have focused on the dangers of texting while driving. With the rapid evolution of technology, however, new dangers seem to be emerging all the time. Someone received a citation for driving while wearing Google glasses. Its anyones guess what may be next.  Twitter was also front and center this week. The company introduced a new photo preview in its Twitter feeds, Starbucks created gift cards that can be sent via Twitter, and two companies sued Twitter for over $100 million dollars for allegedly hiring them under false pretenses to ...

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    Its Halloween, and we employment lawyers would be remiss if we didn't comment on the ways that workplace Halloween costumes can sometimes go wrong. The negative flack that celebrity Julianne Hough is receiving in the news for her blackface Halloween costume highlights the reality that, while Halloween revelry at work can be great fun, it can also come with a risk that an employee crosses over a racial, cultural, political, or other line and offends someone.


    As such, it is a good idea to be thoughtful about office festivities and costumes. A little time spent on the front end can ...
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    The internet can be an invaluable work tool, providing ready access to information and resources essential to getting a job done. The internet can, however, also be a huge distraction, cutting into productivity both at and away from work. For instance, this week a study showed that [f]or every minute that [we] spend lazing on the computer, Americans spend approximately 16 fewer seconds working, seven fewer seconds sleeping, six fewer seconds traveling, four fewer seconds doing household chores, and three fewer seconds educating themselves. Spending time on the computer also means ...

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    Posted in Wage & Hour
    A settlement in the lawsuit against Lady Gaga by her former personal assistant, Jennifer Olsen, was announced this week, a month before the case was scheduled for trial. Ms. Olsen sued the pop star claiming that she was not exempt from wage and hour laws and entitled to additional compensation for her overtime work. How much overtime? Ms. Olsen claims she was at Lady Gaga's beck and call 24/7. Her suit alleged that she was often required to sleep in Lady Gaga's bed so that she could immediately respond to any assignments given throughout the night.


    The settlement may be good news to Lady Gaga ...

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    This week, as we celebrated National Boss Day, many people reflected on their relationship with their boss. Technology can sometimes challenge this relationship, for example, when employees have bosses that love email and refuse to communicate or manage an employee face-to-face. Another highly debated topic is whether bosses and subordinates should friend each other on social networking sites. Technology impacts these boss-subordinate relationships, but also the broader relationship between a company and its employees. For instance, recent court cases examined ...

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    Ive had succession planning on my mind this week following the release of a research poll that indicates that about half of older Americans are delaying retirement plans to work longer. The poll, which was conducted by the Associated Press-NORC Center for Public Affairs Research, indicates that over eighty percent of older Americans plan to work during their retirement years and almost fifty percent expect to delay retirement. Eleven percent of those surveyed indicated they dont expect to ever retire. These survey results may stem from a number of factors. The recent recession has ...

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    New federal and state laws are continuing to impact our relationship with technology and online resources.  This was recently illustrated by the roll out of web-based health insurance exchanges under the federal Patient Protection and Affordable Care Act. The roll out did not go smoothly, and the news was filled with stories of technological glitches and errors that, to some extent, took center stage over the continued partisan split over the substance of the law. At the state level, California passed a law that gives people under the age of eighteen the right to have personal ...

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    This week the government shutdown dominated the news. Many people were told not to come to work, national parks, monuments, and recreational areas were closed, and access to some government services was limited or eliminated completely. In the midst of the shutdown, people have expressed their outrage on Twitter, while posts by various members of Congress on Facebook have received thousands of likes and comments. Even NASA took to Twitter to announce that it would no longer be able to tweet and then promptly suspended its account. All this activity on Twitter took place as the company ...

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    Lawyers often say that bad facts lead to bad law. Cases with outrageous fact patterns can drive a judge or jury to stretch the law and make outcome-based decisions in order to provide relief to a sympathetic party. Lawyers hate these types of decisions, because they can negatively skew the developing law based on one bad situation without enough consideration being paid to the legal implications for other, future cases.

     I recently read one of those decisions. In my frustration over the avoidable bad facts of the case, I had to draft this post. The decision, Lazette v. Kulmatycki, was ...
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    This week, everyone seemed to have an opinion about Apples new iOS 7 software for iPhones whether they loved its new features or were frustrated that it took too long for data to download. While many people were absorbed in their phones, social media also reached another milestone. For the first time, research displayed on the Tumblr website was cited in an amicus brief to the U.S. Supreme Court. Elsewhere, an investigation by the New York Attorney General revealed that many of the reviews on websites such as Yelp are fake. Nineteen companies that have been found responsible for arranging ...

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    Last week, this blog featured posts about the growth and reported benefits of workplace surveillance, as well as some of the legal risks that can arise from surveillance. Workplace surveillance can run the gamut from conducting targeted email searches to investigate potential misconduct by a particular employee to using complex software programs designed to detect theft, cyberloafing, or inappropriate internet usage by anyone in the workforce. As discussed in our previous posts, surveillance may create opportunities to decrease employee dishonesty and improve ...

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    It is so easy to press that like button on a Facebook post by your best friend, your coworker, or your favorite company. In that quick second, it is unlikely that a person could contemplate all the potential legal and Constitutional issues that may be wrapped up in such an action. This week, however, the Fourth Circuit Court of Appeals held that liking a Facebook post is Constitutionally-protected Free Speech. In the case, six employees were fired after they supported a candidate for sheriff by liking him on Facebook. The Court found that liking him was equivalent to showing political ...

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    Earlier this week we blogged about employee surveillance and its potential to change employee behavior. As noted there, employee surveillance is a powerful tool that raises significant legal issues, including those discussed below. 
    Discrimination Laws.  State and federal discrimination laws prohibit employers from obtaining information related to the protected class status of applicants or employees, such as information about national origin, religion or genetic or family medical history. Employers must take care not to search for such protected information, whether ...
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    A couple of recent articles in the New York Times and The Atlantic magazine caught my attention. Although the articles are from very different perspectives, both articles made me think about dishonest employees and how employers deal with them. 

    Lets start with the basic principle addressed in TheAtlantic article. The author points out that most of us lie. Apparently, Americans lie about 1.65 times per day. Nonetheless, lying is the most disliked among the 555 personality traits ranked in a recent survey.   
    In the modern workplace, employers need to keep employees honest hasnt ...
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     Health Exchange Notice Due to Employees by October 1

    We all breathed a huge sigh of relief when the Obama Administration announced that the employer mandate under health care reform would be postponed until 2015.  (Although we cant help reminding employers that they need to be working toward compliance even now) Lately weve been hearing from employers wondering if they still have to provide exchange notices. Yes! The notice is still required, despite the delay in the employer mandate. Heres a refresher on what that entails.

    What is the exchange notice?

    The purpose of the notice ...
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    This week, people around the world remembered the anniversary of 9/11, and President Obama continued to contemplate actions against Syria. Even passive users who may not read the newspaper experienced these events through technology and through hashtags like #neverforget or #syria. Also this week, in the midst of somber news and remembrance, a distraction emerged in the form of two new iPhones featuring new colors and fingerprint identification technology. For every new form of technology, however, there is also a spate of new lawsuits. This week, for example, a U.S. district ...

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     While making a presentation to clients yesterday, I was reminded of the practical and logistical problems many employers face when trying to complete the I-9 process for remote employees. One of my presentation hypotheticals involved a scenario in which a Minnesota company hired a California employee and wanted to complete Section 2 of the I-9 by having the new hire send scanned copies of her identification and employment authorization documents by email. Sounds like a logical and modern approach to I-9 completion, right? Unfortunately, it doesnt comply with I-9 ...

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    This week, Labor Day and National Payroll Week served as good reminders that our post-recession economy is different and the way people work within it is also different. Although the number of jobs has grown, part-time work is becoming the new normal, and virtual work meant that some labored even in the midst of their Labor Day barbecues. National Payroll Week celebrated wage earners and payroll professionals, while polls show that the payroll-to-population employment rate fell in August, and the number of households with union members continues to drop.
     
    This changing nature of the ...
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    The Labor Day holiday is intended to celebrate the contributions of Americas working class. That turns out to be most of us, given the relative few who are independently wealthy and the decreasing percentage of Americans who are currently unemployed. Perhaps this Labor Day week is also an appropriate time to reflect on what makes workers feel valued, given that those who feel valued are likely to be more productive and to stay in their jobs longer. As noted in the Harvard Business Review Management Tip of the Day for August 9, 2013, When employees feel valued, they are more satisfied ...

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    On Wednesday, crowds converged on the Lincoln Memorial and at other venues around the country and around the world to commemorate Martin Luther King, Jr.s Dream speech, made during the 1963 March on Washington. In the fifty years since that famous speech, the way we experience moments that shape history has changed. We are no longer limited to radio, television, newspapers, and news magazines for accounts of important events. This week, people gathered and marched, but were also able to stream live video, tweet, and share their thoughts and images on other social media. This ability to ...
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    Given a recent uptick in court rulings enforcing class action waivers, it may be time to revisit whether your company prefers to resolve disputes with employees in court or through arbitration. Class action waivers in arbitration agreements have been gaining in popularity with employers since the U.S. Supreme Court upheld an arbitration clause containing a class-action waiver in the AT&T Mobility v. Concepcion case in 2010 and again this year in the American Express Co. v. Italian Restaurants case. These Supreme Court cases involved consumer disputes, but numerous employers ...

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    Electronic cigarettes or e-cigarettes have been in the news and are apparently growing in popularity. The New York Times recently published an online debate on the potential health benefits of e-cigarettes and their potential regulation. Other news outlets have published similar articles.  (see, e.g., here, here, and here). Many employers are wondering how to react to employees who want to use e-cigarettes  at work.

    E-cigarettes are battery-powered devices that allow users to inhale nicotine vapors from a heated liquid. Proponents of e-cigarettes argue that they are a safer ...

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    Not too long ago a discussion about face recognition technology sounded like something straight out of a futuristic spy thriller. Today, such technology is well into development. The Department of Homeland Security is testing a crowd-scanning program that will allow it to identify the faces of people on the terrorism watch list. In addition, corporate training courses are developing scanning software to detect when trainees are distracted. The technology tracks the users eye movements and when it detects the user looking away for more than a few seconds, it pauses the program and ...
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    This week, as in many past weeks, a lot of media attention has been paid to privacy: creating it, protecting it, and invading it. Employees are reported to have been fired or disciplined for recording, revealing or posting the wrong thing. Hackers are worried about government surveillance of their activities, while homeowners are worried about hackers infiltrating their home security systems. Electronic health information systems create new opportunities for health-enhancing information sharing, while simultaneously creating risks to patient privacy and safety ...

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    This blog has focused heavily on social media-related issues that arise in the employer/employee relationship and that have been a continual challenge for employers over the last decade. Employment-related social media issues are often close cousins to other important issues created by technology generally and social media specifically. It is crucial for businesses to step back and take a big-picture look at the wide range of social media-related considerations that affect the way they communicate, operate and compete. 
    Our firm recently completed a publication that ...
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     Attorneys often counsel and represent clients as they deal with the consequences of their online misdeeds. This week, for example, a fired employee sued his former employer, claiming that his co-workers shocked him with a Taser and posted a video of the Taser session on YouTube. Sometimes it is the attorneys themselves who get into online trouble, and who face discipline for their conduct. It was reported this week that one attorney was disciplined after hacking into a fellow attorneys email account, and another attorney was suspended from the practice of law for five years after ...

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    A recently-surfaced Advice Memorandum from the National Labor Boards (NLRBs) Office of the General Counsel opined that an employer social media policy prohibiting employees from photographing or video recording the employers facility unlawfully interfered with employees Section 7 rights. Before you run to revise any policies with a similar prohibition, we encourage you to take a deep breath and consider the consequences.
    Many employers serve vulnerable populations, such as the elderly, the intellectually disabled, or those with mental health disabilities. In these ...
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     Some people spend more time with their smartphones than with their friends. This attachment to technology has a number of implications, and not just for a persons social life. This week the Fifth Circuit Court of Appeals held that the government can compel a cellphone company to turn over phone location data without establishing probable cause. The court found that location data was admissible as a business record. Elsewhere, Justice Department lawyers asked the Supreme Court to consider a First Circuit Court of Appeals decision that held that police need a warrant to search the ...

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     Last week, attorneys general of nine states signed a five page letter addressed to the Equal Employment Opportunity Commission. The letter sharply criticizes the EEOCs guidance related to employers use of criminal background checks, and calls the EEOCs position misguided and a gross federal overreach. It accuses the EEOC of attempting to expand Title VIIs protected classes to persons with conviction records.

     
    The letter was sent from West Virginias attorney general and signed by the attorneys general of Montana, Alabama, Nebraska, Colorado, South Carolina, Georgia, Utah ...
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    As clearly evidenced by the flood of social media attention paid to the birth of the United Kingdom's royal baby this week, technology not only disseminates information faster but also makes it hard to avoid. Also reported this week, users are downloading anti-distraction apps to block social media because they cannot stop themselves from wasting time, and companies are developing new gesture recognition technology that eliminates both keyboards and touch screens. The 9th Circuit Court of Appeals also contributed to the growth of information filters this week when it held that a ...

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    The EEOCs Notification Letters have been sent and the lines are now open to complete the EEO-1 survey. Reports must be submitted by the September 30, 2013 deadline.
    The EEO-1 is the form that the EEOC uses to collect workforce data from employers with more than 100 employees. Federal government contractors and first-tier subcontractors who have 50 or more employees and a contract or subcontract of $50,000 or more must also report. As the EEOCs websitemakes clear, employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. Qualifying ...
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    As Edward Snowden continues to seek asylum, privacy issues remain center stage in the world of technology. Universities are rethinking their network security as they face cyberattacks from around the world. The University of Wisconsin, for example, receives almost 100,000 hacking attempts a day from China alone. Yahoo also won a privacy battle this week. In 2008, it filed objections to the NSAs program which required Yahoo to release user data without a warrant, and this week the Foreign Intelligence Surveillance Court declassified Yahoos 2008 briefing, shedding light on its ...

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    Last week, I presented an employment law update at my firms annual Health Law Institute.  While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers.  I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments.   I thought the readers of this blog might appreciate a list too.  So here are some important employment law compliance to-do items:

         1.  Post the new FMLA poster, update your FMLA ...

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    Effective August 1, Minnesota employers with 21 or more employees may have to change their sick leave policies. A change to Minnesota law, enacted during the 2013 legislative session, requires employers that offer paid sick leave benefits to allow the use of those benefits for absenses related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent. Previously, the law had required employers to allow use of paid sick leave only for absences due to the employee's own illness or the illness or injury of a child. The new legislation, which amends a ...

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    When news broke about the NSA surveillance program, privacy became a hot topic. This week, the debate about how to maintain privacy in the digital age continues with Facebook's recent release of its Graph Search function to the general public. Seemingly inconspicuous information on a Facebook user's profile can now be quickly and easily pulled up in a public search. While the implications of this function are yet to be seen, it will likely create an additional wrinkle in how employers respond to employee social media use.

    Other technology news this week focused on the interaction ...

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    Whether your plans for the Fourth of July weekend involve working or celebrating, odds are, you'll be using technology of some sort. If your work involves employee recruitment, you may be part of the growing trend of using Facebook to search for new hires. If you live in the San Francisco Bay area, you may be using social media to follow the effects of the BART strike and plan accordingly. For those able to take time off, there are a number of new apps that may add convenience or provide entertainment to your leisure time. You can take better pictures of fireworks, read up on Fourth of July ...

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    The Obama Administration announced on the afternoon of July 2 that it would not penalize employers that do not provide health insurance in 2014. The Affordable Care Act initially required that all employers with more than 50 employees provide coverage to workers or pay significant fines, beginning in 2014. The Treasury Department now says that it will postpone its implementation until 2015, largely due to employers' concerns. Stay tuned for more specifics as the Treasury Department clarifies this and as employers figure out what this means for them going forward.

    For an E-Benefits ...

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    Click here for a GPM eBenefits Alert on how yesterdays United States Supreme Courts decisions on same-sex marriage will impact employee benefits.

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    This week, technology is affecting how we do business, how we plan for the distribution of property at death, and how we enforce the laws. Nevada is the latest state to adopt a social media privacy bill. Businesses are harnessing the power of social media and on-the-go apps, and a new start-up is helping connect foreign farmers to the market place. An Ohio judge upheld the validity of a will that was written and signed on a tablet, finding that it met the state's legal requirements. At the intersection of technology and law enforcement, Montana became the first state to require police to ...
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    As of July 1, 2013, the Federal Motor Carrier Safety Administrations Hours-of-Service Regulations relating to drivers of a commercial motor vehicle (CMV) are changing. These changes require some significant advance planning for employers of those who drive a CMV.

    Who is affected by these new rules? 
    First, the changes apply only to drivers of a CMV. A CMV is a vehicle that fits anyof the following descriptions:
           Weighs 10,001 pounds or more
           Has a gross vehicle weight rating or gross combination weight rating of 10,001 or more
           Is designed or used to transport 16 or more passengers ...
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    The United States Supreme Court issued two long awaited and employer friendly decisions today. Both relate to issues raised under Title VII of the Civil Rights Act of 1964. 
    Vance v. Ball State University: Who is a Supervisor?

    Under Title VII, employers may be strictly liable for harassment by a supervisor. Employers may also be liable for harassment by a co-worker, but only if the company knew or should have known of the co-workers conduct and failed to take prompt and appropriate corrective action. A question that remained disputed until the Vance decision was who qualified as a ...

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    Summer has finally arrived. While some are outdoors splashing in the lake or pool, there are others who prefer to spend their time making waves online. This week, for example, we bring your stories of a Wendy's employee who was fired after a picture of him drinking directly from a Frosty machine went viral, and a Welsh civil servant who received a 12 month promotion ban due to his "inappropriate comments" on social media. In Ohio, even the police are taking to Facebook, and one city police chief posted ridiculing comments about the city's lawbreakers. In Minnesota, Amazon caused a stir with ...

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    What do discount retailer Dollar General and luxury automobile manufacturer BMW have in common? No, they haven't started selling BMWs at Dollar General stores. Rather, both companies were sued last week by the Equal Employment Opportunity Commission (EEOC) based on the agency's allegation that their criminal background check policies disproportionately impact black job applicants and employees. These are the first lawsuits brought by the EEOC since the agency issued guidance back in April 2012 (blogged about here) requiring employers to engage in an individualized ...

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    The modern workplace this week brought us stories of disability fraud, job recruitment with video games, apps to fight procrastination, and distracted driving. Who says work is boring?

    In North Carolina, a postal worker was indicted for disability fraud when her appearance on a nationally-televised game show revealed her lifting and grabbing capabilities. She had been collecting workers compensation checks since 2004 for an injury that supposedly prevented her from lifting and grabbing, among other things. In the wired workplace, both employers and employees are finding new ...

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    When I'm not lawyering, I like to spend time around horses. That sometimes means spending time observing the habits of horse barn owners and other operators of small agricultural facilities. For an employment lawyer, its scary out there on the farm. If you read the help wanted ads on horse industry list serves and web sites, or peruse the bulletin boards at feed stores, or talk to stable and farm owners, you'll quickly conclude that unlawful employment practices are common and that compliance is not a big concern.
    Agricultural workers and non-agricultural workers are treated ...
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    Technology news was dominated by reports of government snooping this week. The Guardian published a top-secret court order forcing Verizon Wireless to turn over "telephony metadata" (i.e. call details) collected on all of its customers making calls to, from, or within the United States. The Obama Administration defended the order as a counter-terrorism measure, and late Thursday, reports began to surface that the data was used to foil a planned terrorist attack.

    Individuals used technology to act in ways that could be seen as offensive, discriminatory, or maybe both, depending on ...

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    The 2013 U.S. Supreme Court term features several employment law cases important to employers and human resource professionals, including the following significant pending cases:


    Vance v. Ball State University: This case involves the definition of a supervisor for purposes of harassment claims under Title VII of the Civil Rights Act. Under current law, employers may be held strictly liable for the acts of supervisors but harassment by a co-worker will not create liability unless the employer knew or should have known about the harassment. This decision will clarify a ...

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    In an interesting convergence of events, two Minnesota employers recently found themselves on the wrong side of Minnesota's marital status discrimination law just as Minnesota is preparing for same sex marriages to become legal on August 1, 2013. These recent cases serve as an important reminder that Minnesota law prohibits employment discrimination based on marital status, including discrimination based on the situation or identity of an employees spouse. Minnesota employers should also be mindful that, come August, both opposite sex and same sex spouses will be protected by ...

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    The pocket dial: it happens to the best of us. Usually it ends in muffled silence, but, as the events of this week show, sometimes it can result in major life changes, like unemployment or prison time. Take, for example, the two Florida men featured below. One, working as a pizza delivery driver, pocket-dialed a recent customer and left an unintended voicemail full of racial epithets. He and the coworker he was talking to both lost their jobs. A second Florida man betrayed by his backside this week pocket-dialed 911 and inadvertently recorded a message about his intention to murder another ...

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    Four different kinds of employees are causing employers grief in the modern workplace this week.

    The Workaholic: while employees' constant connection to work via smartphones may seem like a great thing, employers need to ensure that they are following wage and hour laws in compensating employees for this time. The California Public Agency Labor and Employment Blog explains how after-hours, work-related smartphone usage can get employers into trouble if they are not careful.

    The Troublemaker: in a recent NLRB memo, the Board found that an employer could legally terminate an ...

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    There was a little something for everyone in this week's technology developments. Colorado adopted a social media workplace privacy law, joining 13 other states with similar laws that limit employers' access to employees' passwords and other personal data. Privacy doesn't fare so well, however, according to new reports that forensic examiners have increased their ability to recover all kinds of things cell phone users thought were "deleted," including incriminating pictures taken with the Snapchat app. All sorts of workplaces are now able to accept mobile payments, which is a ...

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     Last week the Minnesota House of Representatives passed Ban the Box legislation, which prohibits private employers from asking applicants about their criminal record until after they have been selected for an interview. The bill, Senate File 523, passed easily on a 107-26 vote, with 35 Republican Representatives joining all DFL Representatives voting in support.  Governor Mark Dayton has indicated his support and is expected to sign the bill into law.

    With passage of this legislation, Minnesota will be the third state to expand Ban the Box to private employers.  Proponents believe ...

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    Posted in Immigration

    The newly revised Form I-9 went into full effect  this past week on May 7, 2013.  USCIS rolled out the new form earlier this year, but gave employers a 60-day grace period to transition.  As of last Tuesday, United States Citizenship and Immigration Services is no longer accepting the previous version of Form I-9. Employers must use this new form for all new hires and reverifications going forward, but they do not need to complete a new Form I-9 for existing employees with a properly completed form on file.  For more information on the changes to the new Form I-9, please visit the previous blog ...

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    Don't text a texter -- at least not one who's driving. A New Jersey court of appeals is currently considering whether a young woman who texted an individual she allegedly knew was driving could be held liable for the damage arising out of that distraction. If this theory succeeds, it could give employers one more thing to worry about, and may affect how employers communicate with traveling employees. While not illegal yet, it's still a good idea to avoid texting employees you know are driving, especially considering the costs to employers of distracted driving. Better yet, have your ...

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     The Patient Protection and Affordable Care Act (PPACA) is now more than 3 years old and, like any 3-year-old, is beginning to assert itself in new and often clumsy ways. While the stated purpose of the PPACA is to broaden the pool of insured individuals, employers in many sectors are seeking ways to keep employees ineligible for health-care coverage. Institutions of higher education are the latest employers in the news for seeking ways to avoid having their adjunct faculty covered by health insurance. 

    A recent article in The Chronicle of Higher Education highlights the plight of ...
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    Another week passes, and another social media password protection law has been enacted. Arkansas is the latest state to ban employers from obtaining workers' social media login information.

     The NLRB has also been busy dealing with social media issues. In a recent decision, an ALJ found that the University of Pittsburgh Medical Center's social media policy violated Section 7 of the NLRA because it prohibited employees from describing any affiliation they had with their employer in their social media posts. In another case, the Board ruled that Bettie Page Clothing violated Section 8 ...

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    Posted in Discrimination
    Last week in The Modern Workplace Week in Review, we posted a link to an article discussing the results of a survey that found that most people believe you should never friend your boss (81% of those surveyed). 

    From an employment law standpoint, I think the more interesting question is:  should a boss friend an employee? I decided to conduct an informal survey of my peers here at The Modern Workplace.  I asked my colleagues if it was okay for a boss to friend an employee, and the resounding answer was NO. Why not? There are both legal and personal reasons why friending an employee, even if you do not ...
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    The dance between cybersecurity proponents and privacy rights advocates continues. Today, the U.S. Senate Committee on Commerce, Science, and Transportation announced that the Senate will not take up the House version of the Cyber Intelligence Sharing and Protection Act (CISPA). Picking up on some of the public's criticism of the bill, a Senate spokesperson expressed concerns that the House version does not provide sufficient privacy protections. The Senate will be drafting its own version of the cybersecurity bill.

    Employers may want to keep an eye on how this legislation ...

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    Posted in Immigration
    Last week, the bi-partisan Gang of Eight U.S. Senators released an 844 page bill entitled The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. If you are like me and do not have 10+ hours to devote to reading the entire bill, the Senate has also released a 17 page summary that can be found here  

    The bill addresses many aspects of the U.S. immigration system, but in the interest of brevity, I will limit my comments to a few key parts of the bill that directly impact employers. 
     
    Mandatory E-Verify for All Employers

    Under the proposed legislation, all ...

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     I can invade your privacy; you just cant invade mine. It seems like everyone wants to use the latest and greatest technology, but no one wants to suffer the consequences when that same technology is used in ways that harm their interests. Workers want to use social media to have their say about bad bosses, lousy customers, or unfair rules, but don't like it when their employers see the results and react badly. Employers want to protect their businesses and customers from the comments of employees, but also want to use technology to catch employees engaging in all kinds of bad behavior. This ...

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    The United States Supreme Court will be deciding an important affirmative action case this term and has now agreed to hear a second, similar case. These are not employment cases, but the Court's decisions will still be of interest to those of us who advise employers and who have followed the twists and turns of affirmative action over the years. Some observers think that the Court's decision in Fisher is going to signal the end of affirmative action once and for all. Others predict a divided Court and decisions so narrowly tailored that they have no real impact on the future of affirmative ...

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    This week, employers were reminded of some of the perils of going digital, including increased vulnerability of confidential information. Three different companies experienced three different types of a data breach. Merrill Lynch claims its information was breached by two former employees who used their company passwords to steal customer contact information in an attempt to get the customers to leave with them. Winn-Dixie was caught up in litigation after a class of employees discovered that their personal employee data was improperly accessed through the company's employee ...

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    Many employers experience frustration and challenges when trying to obtain meaningful background check information. The cost to replace a terminated employee is high, and can add up quickly for an employer in a high turnover industry such as retail. Employers are wise to develop strategies, tools and resources that help them to recruit qualified workers who will be loyal and trustworthy employees. Background checks are common, and most employers rely on outside vendors to do them. Background check vendors - companies that specialize in gathering and reporting on criminal ...

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    This was a good week for employers to pay attention to the news about technology and social media. There were a number of important developments that may impact how investigations of applicants or employees are performed.


    Utah joined the growing number of states that have passed a ban on employers accessing employees' social media accounts. Washington is debating a similar bill; its version, however, has an exception that would allow employer access during a company investigation. In a similar vein, employers using employee-theft-tracking databases to screen potential hires may ...

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    Later this month, Ill be giving a presentation on employee handbooks.  This has me thinking about what types of policies should be included in a handbook and which items might be better addressed separately and outside of the handbook.  In considering technology and social media policies in particular, I've concluded that it may be best to maintain these policies as stand-alone policies outside of the employee handbook and, in some cases, to incorporate technology and social media requirements into individual employment agreements.

    One key reason for considering a stand-alone ...
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    Spring is in the air, and changing seasons sometimes bring a change in perspective. This week, we see both individuals and the government looking for new ways to deal with old problems.
     

    Since the advent of social media, we've seen the problems it can create in the workplace. Now, individuals looking to avoid such problems can use the new app FireMe! It has a "Check Yourself" tool that analyzes a username's tweets and calculates the likelihood that the tweets will get the author fired.  We're guessing it doesn't come with a guarantee.

    The government is also rethinking how the internet can ...

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    The Supreme Court hears arguments today in the second of two landmark cases involving the national same-sex marriage discussion. The arguments are timely in the state of Minnesota, where an amendment to define marriage as solely between a man and a woman was defeated this past November and a same-sex marriage bill was recently introduced in the state legislature. 

    As the Supreme Court wrestles with the constitutionality of the Defense of Marriage Act and California's Proposition 8, it is important for employers in Minnesota to remember that although Minnesota does not recognize ...

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    Posted in Unemployment
    Legislative efforts at the state and federal level, particularly those related to efforts to stimulate the economy, have changed the length of time that unemployment benefits are available. They also created significant variation in the length of benefits among the states, making it difficult to keep track of what terminated employees can expect and what employers are responsible for around the country. The Wall Street Journal has an interesting article (subscription may be required) on the quantity of benefits available in different states. Currently, the newly unemployed in ...
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    With more and more of our lives occurring online, it is often difficult to keep sensitive information private. This week, there are indications that this task is not likely to get easier anytime soon. There has been an uptick in hacking activity on many fronts. On the employment front, an ex-Reuters employee is facing federal charges for giving the hacking group "Anonymous" a username and password to access the company's system. If convicted, the employee could be imprisoned for up to 30 years and be fined up to $750,000. On the election front, a recent grand jury report shows that a ...

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    The Minnesota Legislature is in full swing, and as always, employers will want to monitor the proposals under consideration at the Capitol. Bills that may impact employers include:

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    It turns out that Facebook can be used for more than just reconnecting with old friends and getting employees in trouble (though there is still plenty of that going on). Now, depending on who you are and where you live, you might be vulnerable to legal service via Facebook. A New York federal court recently ruled that the FTC may serve defendants in India using both email and Facebook. It reasoned that such service was proper under the Federal Rules of Civil Procedure and the Hague Service Convention. Similarly, Texas lawmakers are considering a bill that would allow for service via social ...
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    In the news this week has been a story about a decision by a university to search email accounts of several staff members in an effort to determine the source of a leak to the media. Like many employers, the University did not seek the employees permission before reviewing their emails. The employees whose emails were reviewed were not aware of the University's actions until earlier this month. 

    The fallout from this incident is a good reminder that employers and employees may have very different expectations regarding emails and other electronic information stored on the employers ...
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    Posted in Immigration

     The USCIS has published a Notice in the Federal Register announcing the release of the revised Form I-9.  Employers should begin using the revised form immediately. There is, however, a 60-day grace period before penalties may be imposed for using a previous version of the form. 

    The final changes to the form include additional instructions, an expanded two-page layout, and new data fields for employees to list their email addresses and phone numbers.  Employers should be sure that they update their policies and handbooks to reflect the changes in the revised form and instructions.  In ...

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    Variety is the spice of life, even when it comes to the legal implications of technology. This week offers a good illustration of the many different areas of the law that technology can impact. Here are some current examples:

    Employment Law: A New Mexico judge who violated the court's computer and Internet use policy with his "excessive and improper" instant messaging during court proceedings was forced to resign. A Penn admissions officer who shared on Facebook snippets of admissions essays has sparked debates about online sharing of employment information.

    Securities Law: The ...

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    Is workplace flexibility a necessary casualty of difficult economic times?  When thinking about the innovations that make up the modern workplace for which this blog is named, employers embrace of flexible work hours and locations would be very near the top of the list.  Advances in technology particularly electronic connectivity have allowed employers to move away from traditional concepts of the workplace and the workday.  More employers permit telecommuting by their employees and allow flexible work hours. There are, however, signs in the business world that employees may have ...
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    Yahoo is front and center in tech news this week, but not because of its services. Last Friday, the company told its employees that as of June 1st, no one will be permitted to work from home. The internal memo cited quality and efficiency concerns related to telecommuting. The change has angered some employees and sparked criticism.
    In other interesting news, today is Pope Benedict XVI's last day in office, and cardinals will soon meet in conclave to elect a new pope. Though technological advances such as Twitter and camera phones make secrecy a difficult goal to obtain, the Catholic ...
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    Agencies employing personal care assistants (PCAs) might want to up their unemployment insurance coverage. For the second time in recent months, the Minnesota Court of Appeals has struck down a law that precludes family members who act as PCAs from obtaining certain benefits. In the case of Weir v. ACCRA Care, Inc., the court determined that a statutory prohibition preventing immediate-family-member PCAs from obtaining unemployment benefits is unconstitutional. The court made a similar ruling in December of 2012 in Healthstar Home Health, Inc. v. Jesson. In that case, a ...
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    We hear a lot about individuals' social media accounts getting hacked, but the events of this week remind us that company social media accounts are vulnerable as well. The Twitter accounts of both Burger King and Jeep were broken into and changed. Burger King's profile picture was changed to a McDonald's logo, and the account tweeted that McDonalds had bought Burger King. Jeep's account was changed to look like it was a page for Cadillac and to state that Jeep had been sold to Cadillac because it caught its employees doing pain medication in the bathroom. Both accounts appear to have been ...

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    Today is Presidents Day, or, as it is officially called, Washington's Birthday.  We also celebrate Black History Month each February, making this month a time for reflection on the long history behind our country's efforts towards achieving equality in the workplace.  In honor of both Presidents Day and Black History Month, I'm sharing the list below of Presidents who were in office when our country passed some of its landmark federal civil rights or employment laws, along with some interesting facts about each of the Presidents who played a role in the history behind our current ...
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    As they do with Valentine's Day, many people have a love-hate relationship with technology. They love it when it's good to them and hate it when it burns them.

    This week, both individuals and companies alike felt some pain as the result of their love affair with technology. A Michigan nurse and a Washington barista both lost their jobs because of over-sharing on social media.  The nurse was fired for FMLA fraud after the hospital where she worked saw Facebook pictures of the Mexican vacation she took while still on leave. The barista was fired for using his blog as a forum to insult his ...

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    This week saw the introduction of a bill in the Minnesota House of Representatives that would outlaw the enforcement of most noncompete agreements in Minnesota. Under the pending legislation, all noncompete agreements would become unenforceable, with just three exceptions. The exceptions provide for very limited enforcement of noncompetition agreements in particular circumstances: in connection with:  the sale of a business, in connection with the dissolution of a partnership, and in connection with the withdrawal of membership in a limited liability company. 
    Although ...
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    I don't know if it's the cold, long winter we've been having, or just the increasing popularity of social media, but this week has been chock-full of internet-induced workplace drama. Take for example, the Applebee's server who was fired after posting a picture of customer's receipt on Reddit. The customer happened to be a pastor whose large dining party had incurred an automatic gratuity charge. He crossed out the added gratuity and wrote "I give God 10%, why do you get 18?" After the waitress shared a picture of the receipt -- signature and all -- with the online community, the pastor ...

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    You may have read recent media reports about a dispute between a doctor and his patients son in which the doctor sued the patients son for, among other things, referring to the doctor as a real tool. Frustrated by the care that his father received from the doctor at St. Luke's Hospital in Duluth, Dennis Laurion posted online that [w]hen I mentioned Dr. McKee's name to a friend who is a nurse, she said, Dr. McKee is a real tool.  Upset by this and other negative comments posted by Laurion, Dr. McKee sued him for defamation. The case was eventually appealed to the Minnesota Supreme Court, where ...
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    Recent Department of Labor statistics indicate that the majority of employers who have breached Fair Labor Standards Act ("FLSA") provisions related to breastfeeding mothers have failed to provide an appropriate space for new moms to express milk. The FLSA was amended by the 2010 Patient Affordable Care Act to require employers to provide reasonable break time and a private space for a nursing mother to express milk for one year after the child's birth. All employers are expected to comply with the law, but employers with fewer than 50 employees are not subject to the requirements if ...

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    Have you heard the saying, "Drink more coffee, do stupid things faster with more energy?" Along those lines, I think the theme of this week's events is "Use technology, do stupid things faster with greater ease."
    Example #1: the DNR employee who accessed more than 5,000 driving records without authorization. This could prove to be a costly mistake, because one of the data-breach victims has filed a potential class action lawsuit against the (now ex) employee, the DNR, the Department of Public Safety, and commissioners of those agencies.


    Example #2: the HMV employee who hijacked the ...

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    Do you have a constitutional right to Facebook? Maybe, according to the 7th Circuit. Yesterday, the appellate court struck down an Indiana law which prohibited sex offenders from joining social media sites. Citing the broad language of the ban, the court held that it was an impermissible violation of sex offenders' First Amendment rights.

    Speaking of the First Amendment, earlier on Thursday, a French judge found that Europe's ban on hate speech trumps America's free speech guarantees. The suit was over whether Twitter needed to hand over the identities of people using anti-Semitic ...

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    Here at The Modern Workplace, we have often cautioned employers to be very careful when hiring to avoid claims of discrimination. In particular, we have cautioned employers about using an employees class (such as gender, race, etc.) when making a hiring decision. Our advice may be different, at least in Minnesota, if the class of workers involved is veterans or their spouses.
    During the last legislative session, the Minnesota Legislature enacted a new law which allows private employers to offer favorable treatment to veterans and their spouses in the hiring process.  The new ...
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    The 1st Amendment protects freedom of speech, but that doesn't mean that employees' speech is always protected from employment consequences. Case in point: the tenured New Jersey first-grade teacher fired for referring to her students as "future criminals" in a personal Facebook post she wrote at home in her free time. The teacher challenged her termination on 1st Amendment grounds and appealed to the New Jersey Court of Appeals. The court recently rejected the 1st Amendment claim, finding that her "personal dissatisfaction" with her job did not address a matter of public ...

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    Posted in Discrimination
    They served their country, and now businesses want to return the favor. Yesterday, Wal-Mart announced one of the largest veterans' preference initiatives of all time. Starting Memorial Day, 2013, the mega-retailer is promising to give a job to any veteran who has been honorably discharged within the preceding 12 months. The initiative is expected to employ over 100,000 veterans in the next five years.
    Employing veterans is not only good for the veterans; it can also be good for business. It can provide financial rewards through various tax credits, such as the Returning Heroes Tax ...
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    This week in three words: hacking, tracking, and attacking.

    Hacking: as if worrying about having your cell phone or computer hacked wasn't enough, now recent research from Columbia University indicates that your office phone might also be at risk. The study discovered that at least 15 models of the Cisco Internet Protocol telephone have software that could enable a hacker to turn on a microphone, webcam, or other feature of the phone without the user's knowledge.

    Tracking: a Texas school using Radio Frequency Identification chips to track its students may continue doing so after a ...

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    Class action can be a scary term for any employer. During the past decade, the number of wage and hour class actions brought against employers by large groups of employees claiming violations of wage and hour laws under the Federal Labor Standards Act (FLSA) has increased dramatically. These cases, also known as collective actions are expensive and time consuming to defend. For more than two decades, employers have increasingly relied upon mandatory arbitration agreements in an effort to reduce the risk of class action claims. These agreements require employees to waive their ...
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    As we welcome 2013, its time to focus on New Years resolutions. With President Obamas re-election and governmental agencies announcing increased enforcement efforts in the employment area, 2013 is likely to be an active year for employers. Now is a good time to focus on what the year may bring and to position your company to minimize employment law risks. A few resolutions that should make your priority list include:
    1. Update Your Employee Handbook: 2012 brought a number of legal changes, including an aggressive focus by the National Labor Relations Board (NLRB) on the enforcement of ...
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    This week, states across the country were determined to start off the new year with their best foot forward. High on their lists of priorities? Protecting the rights of online users. In Michigan, the Governor signed into law the Internet Privacy Protection Act, which made Michigan the fifth state (behind Maryland, Illinois, California, and New Jersey) to prohibit employers from requesting social media sign-in information from their employees. In Arizona, the legislature is considering a bill that would make it a felony to threaten, harm, or defraud someone through online ...

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    Posted in Immigration
    Its that time of year again; time for employers to evaluate their H-1B work visa hiring needs in anticipation of H-1B filing season. For those readers who may not be familiar with the H-1B, it is a nonimmigrant visa category that allows employers to hire skilled foreign workers for temporary employment in the U.S. The annual cap for new H-1Bs is 65,000, with an additional 20,000 visa numbers reserved for applicants who possess a Masters degree or higher from a U.S. institution. Note that only petitions filed on behalf of foreign nationals who have not previously been counted ...
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    As 2012 draws to a close, we reflect back on all that we have learned this last year. In the modern workplace, both employers and employees learned their fair share of technological dos and don'ts (re-read a few old Weeks in Review, and you'll see what I mean). The most recent lesson? Even "legal" employment actions can cause PR problems.  Just ask the Iowa dentist who fired his assistant for being too attractive. The Iowa Supreme Court ruled that the termination was justified, but individuals from around the country have plastered the dentist's Yelp page with negative reviews, calling for ...

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    While employers should take steps to comply with all applicable legal obligations, it doesn't hurt to know those areas of compliance that are going to be given particular attention by enforcement agencies. Earlier this week, the EEOC announced its Strategic Enforcement Plan  (SEP) for Fiscal Years 2013 2016. The SEP gives employers a peek at the measures the EEOC believes are needed to achieve its goal of deterring discriminatory practices in the workplace.

    The SEP identifies the following six enforcement priorities:

    1. Eliminating Barriers in Recruitment and Hiring. The Commission ...
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    Do you remember a few weeks back when Facebook was flooded with statuses claiming "copyrights" to users' content? While this hoax was quickly debunked, it left many concerned about what social media can -- and does -- do with the stuff we put online. This week, Instagram fueled the fire when it announced its new terms of use, which allows the company to sell users' photos and keep the profits. The announcement immediately drew opposition, and a day later, Instagram promised to "modify" some of the terms, which are expected  to take effect January 16th. Whether these modifications will win ...
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    Posted in Discrimination
    Employers have been justifiably concerned about the recent significant expansion of employees rights under the Americans with Disabilities Act (See EEOC fact sheet here). However, all hope may not be lost. As employees return from their exotic holiday travel, firing them based on pandemic flu panic may yet be legal.
    This week, a Minnesota Federal Judge issued an order considering:
    the interesting question of whether someone who is regarded as having an impairment that in fact is no more serious than seasonal flu but that, for a period of time, is  widely (although mistakenly ...
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    Do you have a lot of travel plans for this holiday season? Whether it is for work or play, new developments on the technology front may make your trip more enjoyable -- and productive too, if you'd like. The FAA is in the process of updating its policies on in-flight gadget use. With encouragement from the FCC and many frequent fliers, it is possible the FAA will expand when and what devices may be used during air travel.

    If your trip involves leaving the country, you're likely to appreciate the more permissive policies, especially now that three of the United States' largest airlines will be ...

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    Usually, come year-end, you're hearing all kinds of suggestions about how to delay income until next year, so as to reduce the tax burden this year. This year is different. Yes, as the fiscal cliff talk reminds us daily income tax rates for those with high incomes may go up. But there's more, and its not dependent on what Congress does about the fiscal cliff or the deficit .... Starting in 2013, highly compensated employees have to pay an additional Medicare tax.
    Wages over $200,000 will be subject to an additional 0.9% Medicare tax. In addition, unearned income (such as ...
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    This week, there were a number of interesting developments in the world of employment labor law. A NLRB judge ruled that a union's Facebook page is not an extension of the picket line. The case involved striking workers' threatening comments on the union's Facebook page. The NLRB Acting General Counsel initiated the complaint against the union, arguing that the union, which did nothing to disavow the comments, should be held responsible for them, just like it would be if they were made out on the picket line. The NLRB judge disagreed and dismissed the complaint.

    The other two ...

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    Posted in Discrimination
    Perhaps you think this is the most wonderful time of the year, or perhaps you think its the most stressful.  Either way, its here, and our workplaces aren't immune from the impact of the holidays.  It can sometimes be tricky for employers to allow goodwill and celebration without offending those who do not celebrate Christmas. 
    The topics of religious accommodation and religious discrimination have been touched on in previous posts.  This post is focused on the specific issues that arise during the holiday season.  Note that these comments are intended for secular employers only.  ...
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    Usually, our Week in Review posts are full of examples of what can go wrong when employees use social media. This week, we can report a different kind of story. A group of women are harnessing the power of Twitter to promote positive change in the gaming industry. Using the hashtag #1ReasonWhy, these women are speaking out against what they describe as the pervasive culture of sexism in the gaming industry. The question of "why are there so few lady game creators?" has been answered by hundreds of industry professionals, including game developers, journalists, and others ...

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    The U.S. Supreme Court heard oral arguments on Monday in Vance v. Ball State University, a case that could create a more uniform legal standard for determining when an employee is a supervisor under federal harassment law.
     Fourteen years ago, the Supreme Court ruled that employers can be held strictly liable for sexual harassment and other forms of unlawful harassment by a supervisor. When a supervisor engages in unlawful harassment that results in a tangible, adverse action against an employee, an employer is automatically liable for that harassment. In contrast, employers ...
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    Happy Thanksgiving! I hope all of you out there are enjoying good food and even better company. But, in case you need a welcome distraction from intense family bonding (or Black Friday strategizing), here's what is new in the world of technology and the workplace:

    In an EEOC sexual harassment suit against HoneyBaked Ham, Co., a district court judge has ruled that the plaintiffs must turn over their cellphones and social media passwords to a court-appointed forensic expert. This expert is charged with going through text messages and social media content to determine what is relevant ...

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    Three states held votes earlier this month about legalization of the recreational use of marijuana. In two of the three, Washington and Colorado, the measures were approved.  Oregon voters defeated the initiative in their state.  
    What does this mean for employers doing business in states where recreational marijuana use is now legal? Its a little too early to tell, it seems, although it appears that at least in Washington, employers can continue to enforce their drug use and drug testing polices as before, at least for the time being.  Our Washington partner in the Employment Law ...
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    It seems General Petraeus isn't the only one whose digital footprint has betrayed him. A whole host of other individuals' online antics have landed them in hot water this week. Waffle House Chairman, Joe Rogers, Jr. is also facing a sex scandal. His former housekeeper has come forward with sex tapes which she alleges are proof that she was sexually harassed. Rogers denies the harassment and says that he is being blackmailed. A district court has ordered that the tapes be impounded -- for now.

    In Kentucky, a couple of Walmart employees were fired based on an internet video of them throwing ...

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    Its hard to watch or read the news without being bombarded with the story of General Petraeus affair and resignation. The story has expanded beyond General Petraeus conduct to include allegations of inappropriate conduct by an FBI agent involved in the investigation (sending a shirtless picture of himself to Jill Kelley) and General John Allen (exchanging thousands of possibly "inappropriate" emails and other documents with Jill Kelley). As an employment lawyer, I'm continually amazed at the personal content that employees will send in emails and text messages, even from ...
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    Does an employee who violates an employer's computer use policy also violate the Computer Fraud and Abuse Act? Depends on who you ask. The Fourth Circuit recently held that an employee cannot be held liable under the CFAA for such conduct, even if the employee was improperly using computer access to steal company data. There are a number of circuits that disagree, however. Now, WEC Carolina Energy Solutions, the employer in the Fourth Circuit case, is asking the U.S. Supreme Court to weigh in on the issue. Stayed tuned to see if the Court agrees to get involved.

    Other news stories this week ...

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    Posted in Labor & Unions
    In follow-up to my colleague Abigail Crouses blog post last week about the unsettled law regarding at-will disclaimers, this weeks post will include tips on drafting at-will disclaimers that do not violate the NLRA.  For background, here is the NLRBs advice on several specific at-will disclaimers.
    Language
    I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
    No representative of the Company has authority to enter into any agreement contrary to the ...
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    Election Day is almost upon us. The good news is that election ads and calls will soon be over.  For employers, however, one last challenge remains as they figure out how to deal with the many workplace issues surrounding elections.  For an overview of the potential free speech, labor law, social media, and voting leave implications for the workplace, please read my colleague Angela Ruds post from last month.
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    Do you feel like all you ever do is work? Odds are, your personal devices are contributing to that feeling. A recent study by a British tech retailer found that smart devices are adding, on average, an extra two hours of work a day. So while that constant connection may give some peace of mind, it's also likely to bring with it the inability to ever be "off-duty."

    Given the large role technology plays in our lives, it is not surprising that governments around the country have been working to figure out how to appropriately balance its risks and benefits. On Friday, the New Jersey Senate passed a ...

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    In August, I wrote about NLRB decisions which found that certain at-will disclaimers in employee handbooks were unfair labor practices. In a Halloween surprise, the NLRB has now provided some not-frightening news for employers in the form of guidance on at-will disclaimers that do not violate the NLRA. 
    The Board has now advised that the following disclaimer was lawful under the NLRA: 
    Employment with [the Company] is employment at-will.  Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in ...
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    Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (EEOC) has recently issued a guidance describing how the ...

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    Using technology can come at a cost. You don't have to read too many of these Week in Review posts to know that it is not uncommon for individuals to be fired for inappropriate use of email, social media, cell phones, or other means of electronic communication.  Past stories have also shown how technology can cost someone their reputation, money, or freedom from incarceration. This week, we add two items to the list of things that technology can put at risk: unemployment benefits, and your health.
    An employee in Pennsylvania was fired for criticizing his place of employment and coworkers on ...
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    As Election Day approaches, politics and political opinions are likely to be a hot topic of conversation in the workplace. In some cases, this can become a source of tension and conflict among co-workers. This may be especially true this year given the deep political divide that seems to have developed in our country over the past few years. As most human resource professionals know, workplace conflicts can have a detrimental effect on productivity and create legal risk. The best approach to manage this issue is setting the tone at the top as one of respect for different opinions ...
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    Do you remember a while back when I wrote about a group of lifeguards that got fired for posting a spoof of the "Gangnam Style" video on YouTube? The city claimed that they violated the aquatic center's standards of conduct and improperly used city property, but the lifeguards countered that they did it while off the clock. Well, after some heated controversy, the mayor of the city has now recommended that they be reinstated. Three of the five council members agreed, and the city manager is now reviewing the file. Although things may end up working out for these young workers, the situation ...

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    The United States Department of Labor recently announced the creation of a virtual workplace flexibility toolkit designed to provide employers, employees, policy makers, and others with information and resources about workplace flexibility.
    October is National Disability Employment Awareness Month, and the Toolkit is designed in part to assist employers of disabled workers who seek accommodations. The Toolkit web site makes clear, however, that it is intended to address all kinds of complex employment situations, including the circumstances of parents of young ...
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    The Internet can be a great way for companies and professionals to market their products or services and bring in business. But lightning-quick global communication isn't always a good thing, especially when a dissatisfied customer is the one who is doing the talking. This week, a New York lawyer learned that responding to online criticisms may create more problems than it solves. After anonymously being called "the most unscrupulous lawyer" on a review website, the lawyer posted a response saying that he knew who wrote the comment and that the writer, a former client, was ...
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    The workplace tragedy that occurred in Minneapolis two weeks ago, and the media coverage that followed, concerned all Minnesotans, me included. In addition to my reaction as a citizen, I viewed the events and their aftermath as an employment lawyer.
    As is often the case in the face of horrific and inexplicable acts of violence, the workplace mass shootings by Andrew Engeldinger led to questions from many quarters about whether and how such a senseless act of violence could have been avoided. Such well-intentioned questioning, while certainly understandable, raises important ...
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    Posted in Health Care
    The kids are back in school, the crispness of fall is in the air, and thoughts of HR professionals are turning to what else?  Open enrollment!  One of this years fun challenges is the Summary of Benefits and Coverage, or SBC.  
    Does every health plan have to have an SBC?  All group health plans that aren't excepted benefits under HIPAA have to provide it. Vision plans, dental plans, HSAs, and health flexible spending accounts are often excepted benefits. High-deductible health plans are not. 
            TIP:  Here's the part where you need to sit up and pay attention: even plans that are ...
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    Is it just me, or has Wisconsin been in the news a lot lately? From politics to sports, the Dairy State has caught the interest of the nation. This week was no different. When a Wisconsin news anchor used air time to address an email that criticized her weight and accused her of being a bad role model, the clip went viral. National news outlets picked up on the story, the anchor appeared on major-network morning shows, and people around the country weighed in on the appropriateness of the email and the problem of cyberbullying in general. Despite the controversy, the email author is standing by ...

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    Finally, the NLRB has sided with an employer in a Facebook firing case. On October 1st, the NLRB issued its decision in the Karl Knauz Motors, Inc. case, upholding a car dealerships decision to fire a sales employee based on his Facebook postings.
    As mentioned in a previous post the NLRB filed a complaint against the Knauz BMW dealership in May 2011 after the dealership fired a sales employee who had posted critical comments on Facebook about the dealership serving low-end food and drinks at an event promoting a luxury car. Other dealership employees had access to the Facebook page.
    In its ...
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    It's official. In California, you may now eat, read, or even sleep while driving to work. That is, if you are riding in a self-driving car. On Tuesday, the California governor signed a law that permits and regulates the driving of autonomous cars on California roads. While some may be skeptical, Google co-founder Sergey Brin touts these cars as improving transportation safety, increasing mobility of persons with disabilities, and making commutes more productive. He expressed hopes that these cars will be on the roads in less than five years.


    On the other side of the country, states are ...

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    There are many state laws relating to employees rights to vote.  With the general election less than six weeks away, I thought a refresher on voting rights would be in order this week. 
    In Minnesota an employee has a right to paid time off to vote.   Employees have the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal leave, or vacation for voting leave. An employer who refuses, abridges, or interferes with an employees right to voting leave is guilty of a misdemeanor.  I ...
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    The Fair Credit Reporting Act (FCRA) regulates employers who use background checks when the information is provided by third parties (i.e., a Consumer Reporting Agency or CRA).  Before an employer may seek to procure a background check from a CRA, applicants or employees subject to screening must be given certain information, including information about the scope of the check being performed.  The background information may not be obtained without the employer obtaining written consent from the employee or applicant. 
    After a report is obtained, FCRA mandates that other procedures ...
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    Having a rough week? Be thankful you aren't in the limelight, where technology is waiting to capture your every misstep. From Kate Middleton's topless photos to Mitt Romney's leaked fundraising remarks, nobody seems to be able to catch a break this week. Even Washington Redskins receiver Josh Morgan felt the Twitter-wrath of disappointed fans after his unsportsmanlike conduct penalty arguably contributed to the Redskins' 3-point loss on Sunday. But that doesn't mean these celebrities aren't fighting back. The British royal family has already mounted a privacy lawsuit against ...
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    Posted in Labor & Unions
    Despite an employer offer for substantial wage and other compensation increases over four years, the Chicago Teachers Union has taken its members out on strike this week, leaving some 350,000 Chicago Public Schools students wondering what to do with their time and energy. What great divide between the Union and the Schools has precipitated this strike? Primarily, it is the Chicago Public Schools proposal to initiate a new performance evaluation system for teachers, to be implemented gradually and by a joint employer-union committee. In the tradition-bound world of big ...
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    Sick of hearing about the gloom and doom associated with technology? Me too. That is why this Week in Review will be decidedly more positive, focusing on recent studies about the ways technology can enhance the workplace.

    First up: telecommuting. Nearly 4,000 employees -- or 66.3% -- of the US Patent Office do it. With numbers like that, there must be some serious benefits to allowing employees to work remotely. Examples reported in this article include less sick and administrative leave taken, more hours put in (on average, 66.3 more hours per year for telecommuting Patent Office ...

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    Most people are aware that both federal and state statutes address discrimination. Most often, though, its developments in federal law that grab the headlines. Businesses of all kinds should be aware of the requirements of both federal and state discrimination statutes and should keep in mind that state discrimination laws can have a broader reach and pose greater risks than federal statutes. 
    A recent press report helps illustrate the point. A California family alleged that American Airlines discriminated in providing transportation because of the family's son, who has Down ...
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    With a tough economy, efficiency and productivity are often paramount for keeping a business afloat. While technology has certainly aided that cause, it has also provided workers with many time-consuming distractions. The productivity-stealing culprits this week: fantasy football, flirty emails, and co-worker impersonation. Check out the links below to learn more about the cost and benefits of allowing fantasy football teams in the workplace and the potentially unexpected effects of using emoticons in office emails (hint: you may find yourself a new admirer).

    Another ...

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    The blogosphere has been buzzing over recent actions taken by the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) to limit employer requests for confidentiality during workplace investigations. Confidentiality has long been viewed as a hallmark of a good investigation for important reasons, including preserving evidence, encouraging witness cooperation, and reducing retaliation risks. In light of recent NLRB and EEOC activity, however, employers will need to think more carefully about when and how to make confidentiality ...
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    Oh, the joys of technology. It can keep you connected when you're feeling social or provide hours of solo entertainment when you're not. And with new apps coming out every day, it is easy to get lost in a sea of technologically-induced euphoria. But don't let your guard down too quickly, because events this week remind us that where there is technology, there likely is someone -- or something -- watching.

    A St. Paul police officer and a Yahoo News reporter learned that lesson the hard way. The officer, who was caught on a bystander's cellphone kicking an arrested suspect, is facing an ...

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    Theres a new and surprising issue employers should be aware of when updating their employee handbooks this year:  the scope of their at-will disclaimer. A few months ago, in American Red Cross Arizona Blood Services Region and Lois Hampton, an NLRB administrative law judge (ALJ) held that the acknowledgement form contained in an employers handbook violated the National Labor Relations Act, which applies to almost all private employers. The language in question stated:
     
    I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
     
    The ALJ ...
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    Here at the Week in Review, we've seen our fair share of bad employee decisions and the terminations that sometimes follow them. This week, workers around the country found themselves in a whole different kind of trouble for their unwise--and illegal--use of technology. In Texas, a teacher was sentenced to five years in prison for having sexual relationships with five of her students. The relationships began via text message and culminated in a cellphone recording of one of the sexual encounters. In Minnesota, a football coach is facing felony child porn charges after the ...
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    Past Weeks in Review have recounted many tales of Facebook-induced terminations. Fired for Facebook comments? Check. Fired for Facebook photos? Check. Fired for Facebook Likes? Check and check below. But fired for "friending" someone on Facebook? That is precisely what happened to a Georgia county deputy who wanted to be "Facebook friends" with an inmate. The two struck up sexually-charged conversations while she was being held in the county jail, and it appears the deputy wanted to keep contact after she was released on bond. Turns out neither the Sheriff's office nor the inmate's ...

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    A recent survey conducted for CareerBuilder.com is a good reminder that our words matter. Employers and employees were asked about swearing in the workplace. 51% of workers surveyed said they swear at work, although they reported being much less likely to swear in front of superiors than in front of their co-workers.  81% of employers said that swearing brings an employees professionalism into question, 71% said that it indicates lack of control, and 68% said it indicates a lack of maturity. Overall, 64% of employers reported that they would think less of an employee who repeatedly ...
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    There is a fine line between speech that is protected and speech that is not. Cross it, and you may be in trouble. Events this week demonstrate how making this distinction is getting even harder -- and riskier -- as technology evolves. In Virginia, six sheriff's office employees were fired after they liked the Facebook page of their boss's re-election opponent. The district court disagreed with the employees' contention that their "likes" were protected speech, but both the ACLU and Facebook have already filed appeals to the Fourth Circuit. Over in Kansas, a ...
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    As we recently noted, Illinois just became the second state to pass a law prohibiting employers from requiring employees or applicants to disclose their social media passwords. This appears to be the latest addition to a growing body of similar legislation, rather than an isolated action. The adoption of this law in Illinois quickly followed the enactment of the first such law by Maryland. Several other states, including California, Michigan, and New Jersey, have similar bills working their way through their legislatures. Additionally, the U.S. Congress continues to consider the ...
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    Do you have employment or severance agreements (or any other deferred compensation plan) that require employees to sign a release, noncompetition or nonsolicitation agreement before post-termination payments are made? If so, you may have a problem, and you may only have until the end of 2012 to avoid potentially significant tax penalties.
    Many employment severance agreements (and other agreements providing deferred compensation to employees) require employees to sign a release of claims against the employer before payments are made. Sometimes there is also a requirement that ...
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    The government has been working hard to protect online privacy this week. On the regulation side, yesterday the Illinois governor signed the "Facebook Law," making Illinois the second state to statutorily prohibit employers from compelling employees or applicants to disclose their social media passwords. Additionally, the FTC is working to increase online security for minors by proposing new data-protection rules.
    Enforcement efforts are also being stepped up, with prosecutors around the country making examples of internet-using lawbreakers. In Texas, two ...
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    Okay, I couldn't resist the headline. The Star-Tribune recently ran an article with the headline: "Pedestrians distracted by electronic devices stumble into danger, raising safety concerns." As a lifelong klutz, I just had to read the article. Sure enough, statistics show a rise in the number of injuries sustained by those walking while using a cellphone or other electronic device. People are running into telephone poles, falling off subway platforms, falling into ditches, falling off curbs, and being clipped by cars while focusing on their electronic devices.  Some of the ...
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    While reading a recent article in the Wall Street Journal, I was reminded how important it is for companies to be sure that the right people within their organization are informed of new and ongoing litigation and of the company's obligation to preserve potential evidence. When a lawsuit commences, your attorney should send you a litigation hold letter, informing your company of its obligation to preserve documents that may be relevant to the lawsuit. Most people understand that this means that they cant go shred a bunch of documents that might be relevant. What not everyone ...
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    Reason number 999 why employers don't want their employees texting at work: it may lead to a very large fire. That is what happened when a New Hampshire civilian worker got an upsetting text from his ex-girlfriend while at work. He wanted to leave early, so he decided to set the dock of a nuclear-powered Navy submarine on fire. No one was injured, and no damage was done to the submarine -- this time. But, because he admitted to setting an earlier $400-million-submarine fire, he is now facing two counts of arson and the possibility of life in prison. Looks like he may be getting more time off from ...

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    Posted in Health Care
    You've heard a lot of buzz about the individual mandate, the tax, and the expansion of Medicaid. (If somehow you haven't heard enough, you can read the Supreme Court opinion here.) And you'll be hearing plenty more about the political battle over the future of the health care reform law. We have no predictions about that. But whatever you hope will happen to health care reform politically, you know there are a lot of deadlines for the beginning of 2014. And you're wise enough to know you need to gear up for the laws requirements.
    The constitutionality of the individual mandate ...
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    I remember being told as a child that two wrongs do not make a right. This was the common response I got if I tried to justify bad behavior by saying that Id been provoked or that others had done the same thing. I imagine that, like me, parents all over the world still commonly use the phrase two wrongs don't make a right in encouraging children to do the right thing. The lawsuit filed earlier this week by former Minnesota Senate aide Michael Brodkorb should, however, serve as a reminder to employers that this childhood lesson doesn't always apply in the employment discrimination context.
    In the ...
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    What do you get when you combine leaked photos, disgruntled employees, and a judge who is alleged to be watching porn? The answer: one heck of a Week in Review and a tale of multiple firings.

    The leaked photo, which captured an employee of a Burger King restaurant standing in the restaurant's lettuce bins, appeared on the internet with the caption: "This is the lettuce you eat at Burger King." The employees involved were quickly fired once the franchisee that owned the restaurant was identified and contacted.

    Two disgruntled Texas EMTs were also fired because they were involved in a ...

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    For as long as I can remember, I have advised employers that they have a right to monitor employee electronic communications, including emails, if the emails are sent or received on company equipment or company time. I ask the client about whether or not they have a clear policy putting employees on notice that they have no expectation of privacy in emails or other online activity done at work or on work equipment. If such a policy is in place, the employer is generally free to monitor employee activities, with or without other advance notice. This can be important when ...
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    This week, it's all about Facebook again. Except for the news about the Yahoo hack, you'll be hard pressed to find a technological tale that doesn't involve the social media giant. So here it is: the good, the bad, and the ugly of Facebook, all in one convenient location.

    The good: the site continues to create useful apps. There is an anti-bullying tool tailored to help teens report harassing behavior, a price alert app that notifies you when items you Like go on sale, and a plan to launch a job posting board. With apps like these, who says time on Facebook is unproductive?

    The bad: a yoga ...

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    Yesterday investigators, led by former FBI Director Louis Freeh, published their independent report concerning Penn States response to reports of suspected child abuse by former football coach Jerry Sandusky. Sandusky was arrested in 2011 and convicted last month of 45 counts of sexual abuse involving 10 boys over a 15-year period. 
     
    Freehs 267-page report is scathing in its criticism of the University and its leaders. Freeh said in a statement that [t]he most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized. Messrs ...
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    As America turns another year older this week, the government, just like its citizens, struggle to keep up with technological change. While the Executive branch and its agencies are embracing the crime-fighting advantages technology has to offer, the other two branches are pushing back. Legislatures in Delaware and Pennsylvania are working to protect the privacy rights of their citizens by enacting new social media laws. In New York, a judge showed that social media sites are not above the law by ordering Twitter to turn over subpoenaed Tweets of an Occupy Wall Street protester. With ...

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    A new provision of the Minnesota unemployment statute became effective July 1. Enacted by the 2012 legislature, the new language could have an impact on Minnesota employers and employees, but just what that effect might be is not -- to be charitable -- entirely clear.

    It is not unusual for an employer to enter into an agreement with the departing employee under which the employee releases potential claims against the employer. To make such an agreement enforceable in a court of law, the employer must provide the departing employee something of value that, without the agreement, the ...

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    Its been a big week at the Supreme Court. The health care ruling (available here) is grabbing most of the headlines. While more analysis will be pouring out over the next several weeks, several sources are beginning to provide helpful information for employers:
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    You can run, but you can't hide--not from technology anyway. Just ask the eight TSA agents who lost their jobs this week because a video camera caught them sleeping at work, or the Houston journalist who was fired after a rival newspaper exposed her secret stripping gig, or the Dallas police officer under investigation after his aggressive arrest was recorded by a motorcyclist's helmet camera. I guess if you can't fight the technological takeover, you might as well embrace it. Ready to give in? Check out the links below, including latest apps, which claim to save your life in times of ...
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    Yesterday I wrote a post reminding readers about the EEOC litigation focus on inflexible leave policies, which raises the question: what should employers be doing to avoid liability in this area?

    To answer this question, I think it helps to take a step back.  As most employers know, a leave of absence or an extension of a leave of absence are two types of reasonable accommodations that employers covered by the ADA (i.e. employers with 15 or more employees) must consider to accommodate a disabled employee.   When a disabled employee needs an accommodation, employers are required to engage in ...
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    According to a recent statement by an attorney for the EEOC, [O]ne of the hottest areas of EEOC litigation right now involves the agency's efforts to root out inflexible leave policies. Although this statement is hardly news to anyone who closely follows EEOC enforcement efforts, it is a good reminder to employers that inflexible leave policies are an invitation to costly litigation. The type of inflexible leave policies the EEOC has challenged include no-fault attendance policies, policies that provide a maximum limit to the length of leave that may be available, and policies that ...

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    This Father's Day, dads might have more to worry about than how to enthusiastically thank their children for yet another tie. News stories this week highlight the increasing vulnerability of today's youth in a technology-filled world. From cyberbullying to predator apps to camera phones in the locker room, parents around the country are wondering how to keep their children safe. Luckily, they're not alone. The law--and tech companies--are stepping in. The New York Legislature is working on a bill to fight cyberbullying, a Minnesota prosecutor is making an example of  teens who ...

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    Posted in Immigration
    Here at the Modern Workplace, we encourage employers to adopt the Scout Motto when it comes to immigration paperwork: Be Prepared.  Immigration enforcement through silent raids, or workplace audits of Forms I-9 and other documents, continues apace and doesn't look like its going to slow down anytime soon. Just last week, U.S. Immigration and Customs Enforcement (ICE) informally confirmed that it has issued audit notices to another 500 employers. 
    ICE has issued thousands of Notices of Inspection since 2009. The Notices often request not only I-9 documentation, but also payroll ...
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    While the powers of technology often spell trouble for employers and employees, they sure do make for interesting Weeks in Review. And this week is no different. Drag-queen Facebook photos, surreptitious surveillance, and anonymous emails all led to employee terminations this week. Perhaps the most noteworthy is the Oklahoma publisher who fired 25 employees over an anonymous, company-wide email that spoke of alleged outsourcing and mass layoffs. Not knowing the exact source of the email, the owner fired those he thought might be involved. To make matters more ...

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    Employers these days have a lot of obligations. They have bills to pay, workers to manage, customers to satisfy, and laws to follow. But what happens when two obligations conflict? What is an employer to do?   When in doubt, follow the law right?  But one Minnesota employer recently discovered things aren't that simple, especially when the law may be telling the employer to do two different things.

    A company in southeast Minnesota had approximately 30 Somali workers walk off the job on Monday morning to protest the companys new dress code policy. The policy, which prohibits women from ...

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    As technology continues to change, so too do employers' efforts to keep up. With new laws preventing employers from using passwords to access employees' Facebook pages, employers are finding other ways to monitor employees' online activities.  A new Gartner report predicts that by 2015, 60% of businesses will be using Internet-monitoring technologies to monitor employees' social media use. However, employers must be careful in their quest to control online employee expression. This week, the NLRB issued a social media report cautioning all employers (even those ...

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    Although employers rightfully appreciate the efficiency and responsiveness of employees who use cell phones (and smart phones) to get their work done, they must also be aware of the financial and safety risks created by the use of these devices while driving. Numerous media reports have trumpeted the increase of distracted driving including the use of a cell phone as a cause for automobile accidents. A recent article in the Washington Post noted multi-million dollar jury awards against employers in accidents involving death or serious injury, when the negligent driver was talking ...
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    This week, technology brings trouble for employees and students, but benefits for the government and its citizens. In Massachusetts, a firefighter's emails were used against him in a sexual harassment investigation. Nearby, a Rutgers student was sentenced to 30 days in jail for using a webcam to spy on his roommate, and a Boston University student's plea for the Supreme Court to review his $675,000 fine for illegally downloading music was rejected. The government, on the other hand, is using technology to solve--rather than create--problems. Federal agencies are using apps to ...

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    April 2012 was a busy month for the EEOC.  In addition to issuing new Guidance on discrimination against ex-convicts, the EEOC strengthened discrimination protections for another traditionally marginalized group - transgender individuals. In the case of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC found, for the first time, that transgender discrimination is illegal sex discrimination under Title VII of the Civil Rights Act of 1964.
    Gender identity and sexual orientation discrimination is already unlawful under Minnesota state law and in a number of ...
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    Facebook dominated headlines once again this week, leaving little room for employment-related matters.  The cyber world was abuzz in anticipation of this morning's launch of Facebook's IPO. The final IPO was set yesterday at $38 per share, but trading opened this morning at $42 a share.  While many investors believe this is their golden ticket, others aren't so sure. With a pending privacy lawsuit and an AP poll showing that half of Americans think Facebook is a passing fad, it remains to be seen what kind of a deal Facebook investors really got today.

    Technology and the ...

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    On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on the use of criminal history information in making hiring and other employment decisions. This Guidance furthers the EEOCs strategic focus on eradicating systemic race discrimination, as discussed in earlier blog posts (4/25/12 and 1/27/12). Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To ...
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    Tired of hearing about privacy?  Perhaps you should avoid the news for a little while longer, then, because this week the war over online privacy heated up when Congress decided to join the fight. On Wednesday, the Password Protection Act of 2012 was introduced in the US Senate.  It seeks to prohibit employers from coercing prospective and current employees to provide access to any secured information stored online or from retaliating against employees' refusals to do so. An identical bill is being debated in the House. A California bill with the same aims unanimously passed the Assembly ...

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    It has been less than 90 days since the Associated Press ran a story about employers requiring applicants and workers to provide their passwords to social media sites like Facebook, and now a new law makes this illegal. Maryland is the first state to enact a law making it unlawful for employers to ask applicants or employees to provide their log-in information.  Other states have similar bills pending.
    In late April, the Social Networking Online Protection Act, or SNOPA, was introduced in Congress. If passed, this law would prohibit current and potential employers from requiring a ...
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    Privacy is right on the tip of everyone's tongue again this week.  Delaware proposed its own Facebook privacy law for employers and employees that goes even further than Maryland's recent legislation and  the law currently before Congress.  The FCC released its full report on concerns with Google's gathering of data for their Street View feature on Google maps.  A court in the Eastern District of Virginia ruled that a Facebook "like" is not protected under the First Amendment.  Finally, the New York Times described how users can cover up their searching habits on the web.


    Technology and the ...

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    There is a chance that what your employees actually do in the day-to-day performance of their jobs isn't what's written in their job descriptions. This may not appear to be a problem if the work is getting done, but inaccurate or incomplete job descriptions can and do create problems for employers, especially if the EEOC or the Department of Labor comes calling. Employers are wise to include routine review and updating of job descriptions on their list of spring cleaning priorities. In addition to being part of a good defense against some claims of unfair or unlawful treatment, accurate ...
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    What would a Week in Review be without some Facebook controversy? No need to ponder that possibility too long, for this week brings us a whole variety of ways in which Facebook is getting people into trouble. In the working world, a Marine lost his job and benefits because he used Facebook as a forum to criticize his Commander in Chief. In Indiana, three eighth-grade girls got expelled for posting on Facebook which classmates they would like to kill.  In Georgia, two more middle schoolers are being sued for defamation as a result of their Facebook bullying. So remember, whether you are a ...

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    The EEOCs recently announced Strategic Plan for Fiscal Years 2012 2016 identifies systemic discrimination as a main focus of the next few years. What does this mean for employers? Among other things, employers need to be cautious about policies that, although facially nondiscriminatory, end up adversely impacting legally protected groups.
    Given the publicity surrounding the EEOCs recent settlement with Pepsi, the enforcement and litigation priorities  referenced in its new strategic plan are certain to include the elimination of policies that unreasonably hamper the ...
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    This week produced more evidence that technology pervades every aspect of our lives, from our work, to our health, to our dreams? That's right, there's an App for that. But don't lose heart just yet, because this week also saw some pushback against the tech-takeover. In the working world, two Nashville men set out to prove that even television shows have to follow the law in hiring cast members. These men are suing ABC for race discrimination, stating that in the 10 years and 23 combined seasons of "The Bachelor" and "The Bachelorette" there has never been a person of color in the central ...
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    Posted in Labor & Unions
    To post or not to post?  Employers now have a temporary answer. The D.C. Circuit Court of Appeals has issued an order blocking implementation by the National Labor Relations Board of its announced rule requiring private employers to post a Notice of Collective Bargaining Rights by April 30. We have previously written (click for The Modern Workplace and Employment Edge) about the Notice posting rule. Now employers will not be required to post the Notice until at least some time later this fall. This does not affect in any way the underlying collective bargaining rights that were the ...
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    This week brought some protection for employees in their use of work computers and social media.  The en banc Ninth Circuit ruled that employees who violate an employer's computer use policy do not commit a federal crime under the Computer Fraud and Abuse Act.  But employees should take note that the circuits are split on this issue.  The Maryland legislature also sided with employees by becoming the first state to pass a bill banning employers from requiring social media passwords.  The bill currently awaits the governor's signature.
    Technology and the Workplace
    9th Circuit Narrows ...
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    I just read an online article which claims that employers are turning to gaming techniques to recruit and screen potential applicants. In fact, I learned another new word: Gamification. Apparently, some companies are finding that gaming techniques help them find better hires when the traditional applicant screening methods are not effective at finding employees with the right mixture of skills. With the expected shortage of skilled workers that will result from the retirement of the baby boomers, finding employees with the right skills and attributes has become even more ...
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    All employers have had a request from a potential new employer for a recommendation about a prior employee. I use the term recommendation loosely, because often the potential new employer really wants to find out if there is anything wrong with the candidate they're considering. Providing information about prior employees, or even current employees, may create the risk of claims for defamation or create other types of liability. As a result, many employers try to limit their risk by declining to provide any recommendations for employees or former employees. Other employers modify ...
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    As the law attempts to keep up with technology, judges often must draw difficult lines concerning social media and individual rights.  A recent ruling by an NLRB administrative law judge held that a provision in an employer's social medial policy prohibiting any online commenting on work-related legal matters was too broad.  However, the judge upheld another portion of the policy prohibiting unapproved posting of photos showing employees in uniform.  A Washington case asks whether an employer engaged in disability discrimination when it fired an employee after ...
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    Posted in Immigration
    Last week,  U.S. Citizenship and Immigration Services published proposed revisions to Form I-9 in the Federal Register (go to this link and click on PDF image). The proposed form includes more detailed instructions and greater clarity about what information is required in the various fields. The most notable change is that the proposed form is two pages instead of one. In addition, the draft form includes several modifications and additions worth noting, including:
    • Time of hire is redefined as no later than the first day of work for pay.
    • Clear instructions to employers about how to ...
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    Earlier this week, Sam Diehl wrote a posting, titled "Gimme Your Password," about employers' practices of requiring applicants or employees to hand over their social media passwords.  As the week progressed, discussion of the issue extended beyond legal and HR departments.  The media, Congress, and even Facebook itself joined in the dialogue.  And as if Facebook wasn't stirring up enough controversy, a new app lets you create enemies rather than friends.  
    Technology and the Workplace
    Facebook Password Amendment Rejected by Congress (PCWorld) (CBSNews)
    Facebook to Employers ...
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    The Associated Press reports that employers are increasingly asking applicants to provide their Facebook usernames and passwords during the hiring process.  While this practice may not yet be common, its interesting that a significant number of employers believe information available on an applicants semi-private Facebook page will be helpful in their hiring decisions.
    From a legal perspective, its unclear whether this employer practice, standing alone, violates any legal rights.  If the practice becomes widespread, however, employees lawyers may want to challenge the ...
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    This week we have six articles involving social media.  Fittingly, one of them asks whether we are all making too much of social media's impact on the workplace.  Serving as an example of social media's impact, a recent survey shows that nearly half of employers conduct social media background checks.  And a New York Times article provides an interesting look at the unique considerations on Wall Street concerning employees' use of social media.
    Technology and the Workplace
    Is Too Much Being Made of Social Media's Impact on the Workplace? (Conn.EmploymentLawBlog)
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    Even non-union employers need to be careful about their labor law obligations.  Most readers have either given or heard this advice multiple times, but labor law risks are still sometimes overlooked.    As an example, in one of the strangest employment-related news stories of the week, a Florida law firm  reportedly fired 14 employees because they wore orange to work on a Friday.  According to the news report, the law firm called the employees into a conference room and an executive accused them of engaging in a protest.  An employee explained that they were not engaged in a protest, but ...

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    Last month, my colleague Kathryn Nash wrote about the dangers when employers, particularly for-profit companies, offer unpaid internships.  This is a legal issue that has been around for quite some time, but for some reason maybe because the risks of getting caught had not seemed very high many companies continue to hire unpaid interns.  (For a funny take on unpaid internships, check out the "Stuff White People Like" blog entry #105.)


    Well, the stakes for companies using unpaid interns have just gotten higher.  Last Wednesday, an intern filed a wage and hour claim against Charlie Rose and ...

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    This week, technology came with a cost, causing employers to face liability and employees to face job-loss.  A California court held an employer liable for employees' harassing off-duty blog posts.  A North Carolina steakhouse fired a waiter after he posted a photo online showing a generous tip left by Peyton Manning.  A Minnesota school also faces liability for forcing a student to surrender her Facebook password.


    Technology and the Workplace
    Off-Duty Blogging Creates Employer Harassment Liability (LawfficeSpace)
    Steakhouse Waiter Fired for Showing the World What a Great Tipper ...

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    If you know anything at all about the NFL, you know that Peyton Manning is one of the leagues great quarterbacks. What you may not know about Peyton is that he's a very generous tipper. Jon, a (former) server at the Angus Barn in Raleigh, NC, wanted the world to know. (Deadspin has the story here). Courtesy of Jon, a photo of Mannings restaurant receipt, showing an extremely generous tip, made it online. And now Jon, who obviously didn't think before he posted, provides a good example of why employers should educate employees on social media use and consequences.
    Employees often fail to make a ...
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    This week featured the ongoing battle surrounding technology, the workplace and privacy.  Employees of the Food and Drug Administration sued the agency over its surveillance of their personal e-mail.  A New York judge overturned a teacher's firing that was based on a Facebook posting expressing the wish that her students drown.  Despite the conflicts, a recent report predicts that fewer companies will block social media sites in the workplace by 2014.



    Technology and the Workplace
    FDA Staffers Sue Agency over Surveillance of Personal E-mail (WashingtonPost)
    Companies Opening ...

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    We communicate with our clients by email all the time. Email correspondence is the rule, not the exception, for lawyers and clients these days. We email back and forth about policies, practices, investigations, terminations, leaves, complaints, contracts, union activity, and all the other employment-related issues that we deal with. Sometimes these emails contain highly sensitive information about the employer or employee. Sometimes we discuss legal strategy. Most of the time, information we communicate electronically is information we would never want to share with ...
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    For more than 60,000 workers in America, March 5-9 will be the week that the "modern workplace" is at home. This week is the second annual effort of Telework Exchange to encourage workers and employers to save time and resources through telework. Telework Exchange describes itself as "a public-private partnership focused on demonstrating the tangible value of telework..." and describes Telework Week as a "win-win opportunity for agencies, organizations, employees, and the environment."


    By the end of last week, 62,322 employees had pledged on Telework's website that they ...

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    This week technology is once again getting people in trouble.  Legislators are concerned with employers' practices of requiring access to employees' social media accounts.  A federal judge has reported himself for ethics review after admitting to sending a racist email.  Some commentators are speculating that Pinterest users could be held liable for their pins.  Check out the links below to make sure technology doesn't get you into hot water.
    Technology and the Workplace
    Legislators Concerned About Monitoring of Employee, Student Social Media (SoMdNews)

    Keeping an Eye on ...

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    In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor.  The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses ...

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    This week technology once again helped and hurt the workplace.  Companies are using cloud computing to save thousands of dollars, but employees still waste countless hours on email and the web.  Meanwhile, new technology is making headlines this week, from Google goggles to an app that locates your iPhone for you.  Plus, rumors are circulating about Microsoft Office on the iPad.  Even if it's not true, a new app will give you access to a Windows 7 desktop from your iPad.

    Technology and the Workplace
    Should You Send That Email? (FastCo)
    Your Facebook Profile Can Predict Your Job ...

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    I was researching cupcake places for an upcoming trip to New Mexico (I have a thing for cupcakes) when I came across the following advertisement for an unpaid internship on a cupcake shops website:

    We're looking for interns! While these positions are unpaid, there is potential to lead to paid employment with [XYZ Bakery]. An internship with us is a great opportunity to learn all aspects of working in a scratch bakery, you'll have the opportunity to learn about cake batters, fillings, buttercream, fondant, gum paste, cake decorating and tiered cake construction.

    No, I wasn't thinking of ...

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    This week both Washington and the workplace paid close attention to technology.  Congress plans to approve a bill that will auction public airwaves in order to help cover the payroll tax cut extension.  The Federal Trade Commission called for better privacy notices for apps directed at kids.  App developers came under scrutiny by members of Congress after reports that many developers were gathering information from phone address books without the owner's knowledge.  And workplaces are realizing how mobile technology saves both time and money.
    Technology and the Workplace
    Why ...
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    Last Friday, Governor Mark Dayton vetoed four GOP-sponsored litigation reform bills that had been approved by the Minnesota House and Minnesota Senate. We previously posted about these bills, which were aimed at limiting litigation costs and which were the first bills to reach the Governors desk this legislative session. Had they passed, the bills would have: (1) reduced the statute of limitations for filing a lawsuit; (2) limited the recovery of attorneys fees by successful claimants; (3) created stronger appeal rights to challenge a case being designated as a class action; and ...
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    Many companies purchase smartphones or cell phones for employees use, or pay all or part of their employees phone service fees.  Employees see this as a great job perk, and employers like the increased productivity and accessibility that results.
    So, what happens when an employer needs to do an investigation -- perhaps because of a complaint of harassment, or worries about leaks of confidential information -- and  wants access to the data? Many employers assume that because they pay for the service, they can gain access to the text messages and emails that have been sent from their ...
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    Love is in the air this week as Valentine's Day approaches, and technology is in the news as it continues to impact and influence the development of the law.  A Senate committee approved a bill this week that would allow television access to Supreme Court proceedings.  A Texas court upheld the use of a defendant's MySpace page as evidence in his murder conviction.  The country of Brazil filed suit against Twitter to try to block accounts that warn drivers of speed traps and roadblocks.  And just as the law has collided with technology, Cupid's arrow has struck mobile devices everywhere ...

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    In Minnesota, we've known that employee handbooks can be contracts since the Pine River State Bank case in 1983. Since then, courts have continued to find that the policies and statements in employee handbooks to employees can, in fact, be the terms of an enforceable contract between employer and employee. Employees have been awarded significant damages for breach of contract when policies outlined in a handbook are not followed, or promises made in a handbook are not kept.

    Minnesota courts have held that employers can protect themselves from contractual liability by including ...

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    I recently read an article in the Star Tribune highlighting four bills that have passed the Minnesota House which are intended to limit the costs of lawsuits. According to the article, the bills are favored by a coalition of business groups. What caught my eye was the statement that one of the bills would limit attorney fees in certain cases, such as wrongful termination or sexual harassment, where state law requires the fees be paid as part of the lawsuit. I wasnt sure how fees could be limited in sexual harassment cases but not in other types of harassment cases. I did some digging and ...
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    Employees are more active on Facebook and spending more time browsing Twitter at the workplace, according to new research.  Employees were three times more active on Facebook at the office compared with activity during the same period in 2010, and they also browsed Twitter seven times more often. Does this mean employees are wasting more time and slacking? The report suggests the answer is not necessarily. A growing number of companies ask workers to use Facebook and Twitter to market products, monitor competitors, and communicate with customers. And they are encouraging this ...
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    This week two events have dominated the Web:  Facebook filed for a $5 billion initial public offering, and the New York Giants and New England Patriots are preparing to face off in Super Bowl 46.  But don't get so caught up pondering Mark Zuckerberg's net worth that you overlook the other stories this week concerning technology, the law, and the workplace. Get up to speed on all of it and then pick out your favorite apps for Sunday's big game - the kind for your phone, not your stomach. 
    Technology and the Law
    Facebook Files for $5 Billion IPO (CNNMoney)
    Google Defends Privacy ...
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    Posted in Labor & Unions
    The National Labor Relations Board has adopted procedural rule changes that would alter how the union representation process unfolds by accelerating the timeline from petition to election.  These and other proposed changes have caused alarm because they are perceived as an effort by the Board to restrict employers right to communicate opposition to union organizing.  But another cause for concern should be the administrative headache, nay migraine, the Boards new rules will likely create. 


    If you're a non-union employer, you may be caught off guard by the administrative burden, not ...

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    Earlier this month, Pepsi Beverage Co. entered into a conciliation agreement with the Equal Employment Opportunity Commission in which the company agreed to pay $3.13 million and offer employment to 300 black applicants who were denied employment because of the companys background investigation policies.  The case has received media attention, but much of it appears to simply be a reminder of the pitfalls of requesting information about an applicants arrest records.  Pepsis policy of inquiring into arrest records was ill advised, but its worth noting that the practice of excluding ...
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    This week privacy and technology collide once again.  On Monday the Supreme Court unanimously ruled that the use of a GPS tracking device placed on a suspect's car constituted a search under the Fourth Amendment.  The FBI indirectly announced plans to monitor social networks when it requested information from contractors who might want to build the monitoring system.  But perhaps the largest privacy concerns this week have come from Facebook's announcement that its Timeline format will soon be mandatory.  So once you finish reading the links below, get a plan ...
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    This week was nothing short of historic in the context of technology and the law. Wikipedia, Google, and others blacked out or censored their sites in protest of anti-piracy bills in the House and Senate.  Apple unveiled technology that could change the world of education.  Facebook introduced new apps that help users share even more information about themselves - yes, apparently it is possible. 
    Technology and the Law
    Internet Blackout Causes 18 Senators to Flee from PIPA (Forbes) (NYTimes) (FastCo)
    U.S. Shuts Down MegaUpload, Charges Kim Dotcom, 6 Others with Piracy ...
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    Last week, the Eleventh Circuit Court of Appeals held that a former employee can pursue her FMLA claims against her former employer even though she failed to meet eligibility requirements under the FMLA at the time she was terminated.  In Pereda v. Brookdale Senior Living Communities, Inc., an employee gave advance notice that she would need FMLA leave because of her pregnancy.  Shortly thereafter, the employee was put on a performance improvement plan and then terminated.  The employee brought suit, claiming that her former employer had interfered with her FMLA rights and retaliated ...
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    This week, instead of looking back, we look ahead to the new year. We certainly expect fascinating court decisions about technology and the workplace.  Employers and employees are keeping in line with the New Years theme of self-improvement by using technology to make themselves and their workplace more efficient.  And new technology is helping individuals achieve their 2012 goals, from weight loss to learning a musical instrument.  So click away and be inspired to make 2012 the best yet.


    Technology and the Law
    Can a Court Make You Give Up Your Password? (ABC News)
    New Fight Breaks Out ...

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    Employee use of social media tools, such as an actively managed professional profile on LinkedIn, can be quite beneficial to the business interests of an employer.  As with many work-related innovations, however, sometimes there can be too much of a good thing.  Social media tools can be vehicles for serious harm to employers.  In particular, the use of social media sites by employees can lead to disclosure of a company's confidential business information, and may also provide significant opportunities for unlawful competition by employees.  These very real threats to an employers ...
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    A recent article in the New York Times highlights an interesting lawsuit about a Twitter account. The lawsuit deals with legal and practical issues of interest to employers whose employees engage in social media on the employers behalf.
    As reported by the Times, Noah Kravits, an employee of PhoneDog Media L.L.C., and its mobile phone website called Phonedog.com, opened a Twitter account and began regularly tweeting under the name Phonedog_Noah.  The company sells phones and related items and also posts articles and commentary.
    After the Phonedog_Noah account amassed 17,000 ...
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    If the large numbers of crashes by distracted drivers is not enough, companies that employ drivers of commercial motor vehicles (CMVs) have one more reason to prohibit the use of cellular telephones by drivers while driving:  The United States Department of Transportation recently announced the issuance of the final rule that prohibits commercial drivers from using hand-held mobile telephones while operating their vehicles. 


    The final rule, issued jointly by the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety ...

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    Posted in Labor & Unions
    Among other developments at the National Labor Relations Board (NLRB), as it prepared for another period of inertia brought on by lack of a quorum, the agency announced near the end of last month that it has agreed to postpone the effective date of its employee rights notice-posting rule.  The postponement is at the request of the federal court in Washington, DC, which is hearing a legal challenge regarding the rule. We have previously written about the new NLRB rule requiring employers to post a notice of collective bargaining rights along with their other workplace postings. April ...
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    Interesting developments touching on technology in the workplace, and regarding employment law issues generally, dont take a year-end break for the holidays.  Indeed, those work-related holiday gatherings have been known to be fertile breeding grounds for employment difficulties --but dont get us started on that.  In this two week, holiday season Week in Review, we provide you with a virtual smorgasbord of linked articles heavy on interest, but light on calories.  Enjoy and see you next year.
    Technology and the Workplace
    Numerous American Businesses Plan to Deploy iPads in the ...
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    The end of the year is, of course, a time for reflections, predictions, and resolutions for the new year.  As Ive reflected on the 2011 Modern Workplace blog posts, the primary take-away from most posts is the importance of having a carefully drafted, lawful technology policy.  In addition, the web is currently filled with technology predictions for 2012 that suggest the lightning fast pace of technological developments impacting the workplace will continue in 2012.  Some of the 2012 predictions include touch computing potentially replacing desktops and laptops, more effective ...

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    This week we see the courts dealing with issues and conflicts that arise from the use of technology. English courts have begun to allow journalists to tweet, email, and go on Facebook during legal proceedings. Writing a negative and harassing blog can be a violation of a restraining order. Facebook connections come under scrutiny if they involve the families of participants in legal proceedings. These and other articles linked below discuss the intersection of technology, law and the workplace.
     
    Technology and the Law
     
    English Courts to Allow Journalists to Use Twitter ...
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    Twitter has been in the news this week, they've launched the first update to their website since its creation, and with 100 million followers and 250 million tweets per day, the social media tool has been providing fodder for the judicial system. Twitter has a propensity to show up regularly in the media, poor tweet judgment has repeatedly been shown by celebrities and politicians. Twitter feeds are easily subscribed to, available to the public, and almost intractable. These qualities can lead to a host of legal issues.  Once statements are sent out to the world at ...
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    On November 18, 2011, the animal rights group Mercy for Animals released a video that was secretly recorded at several farms owned and operated by Litchfield, Minnesota-based Sparboe Farms, the fifth largest shell egg producer in the United States. The video shows the mistreatment of select hens used in the production of eggs. The video was obtained by ABC News and was used as part of a story for the ABC News Magazine television show 20/20.  That story and the surrounding media attention caused a ripple effect in the food industry. Within days of the release of the video, customers of ...
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    During a recent training that I provided on hiring dos and don'ts, one of the managers attending the training asked if his company should continue to call previous employers for references.  The manager expressed frustration that most often, previous employers will only confirm dates of employment.  He wondered whether it is really worth the effort to continue to make these calls.  Short answer: I believe it continues to be a worthwhile step in the hiring process.

    Although it is frustrating to a prospective employer to be given only basic information, theres a reason it happens that way ...
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    The controversy surrounding Carrier IQ software is evolving rapidly. Carrier IQ software is preinstalled on phones from AT&T, Sprint and T-Mobile. Its original purpose was as an analytic tool that would allow carriers to provide better service by recording dropped calls and instances of poor reception. However, the software apparently also records all of a phone's keystrokes. This gives rise to privacy concerns, and a suit has been filed by consumers under the Federal Wiretap Act. Additional problems such as hacking and identity theft are also being addressed in ...
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    Foreign nationals are often among the most highly-qualified applicants for permanent positions at colleges and universities in the United States.  In order to hire and retain foreign national candidates for permanent positions, colleges and universities need to follow a series of steps to assist the qualified foreign national candidate in obtaining work permission and, if desired, permanent residence status in the U.S. Permanent residence status confers on foreign nationals the right to live and work in the U.S. without time limitations.  One of the more common ways to obtain ...
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    This week we see the push and pull between the benefits that new technology can provide and the difficulties it creates when we try to integrate it into our current systems. A number of problems have arisen recently based on the availability of cell phone GPS data and the security of data organizational and protection software. These, and other technological issues affecting our lives, have been collected below.
    Technology and the Law
    Conflict Between Circuit Courts on Legality of Cellphone Tracking (SecurityNewsDaily)
    Legality of Malls Tracking Shoppers Using their ...
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    Technology definitely changes faster than the law. It can take anywhere from several months to several years for the law to recognize and sort out causes of action created by new technology. In the news this week, we see that courts and legislatures are getting more up-to-date on technology, and that problems sometimes result. Below are some links showing how the law has and hasn't kept up, as well as what has been changing in the world, the workplace and the law.
    Technology and the Workplace
    Who Owns Your Company's Twitter Account? (DelawareEmploymentLaw)
    Most Hospitals ...
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    The recent, shocking news floating around Penn State University has understandably caused some employers to reflect on their obligation to report and take meaningful action in response to suspected criminal sexual activity.  Most states have statutes that establish when reporting of the abuse of a minor is required, but employers who do not serve or supervise minors may have little knowledge of mandatory reporting laws. Common law, which also varies from state to state, may create a duty of care for employers that requires reasonable attention to the safety and security of employees ...
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    The work of those in highly visible positions (political figures, executives, business owners and litigants) is subjected to a great deal of public scrutiny. Women who are in these roles are no exception, and views about their performance, strengths, weaknesses and personality are widely discussed in the media. The articles below discuss some of the current technological and legal issues that have come up this week, both those involving women and the world at large.  
    Technology and the Workplace

    The Newest Tech Start-Ups and the Women Who Founded Them ...
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    Recent news coverage of Republican Presidential Candidate Herman Cain reminds us that sexual harassment in the workplace is still a powerful issue.  The events alleged by Mr. Cain's former employees took place before social media emerged as the force it is today, so its doubtful that email, text messages, or other forms of electronic communication were relevant to the investigations done by the National Restaurant Association back in the 90s.  In todays technology-saturated workplace, however, any and all forms of electronic communication may be critical sources of information in ...
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    Posted in Immigration
    We have received information that the Department of Homeland Securitys Immigration and Customs Enforcement (ICE) agency recently initiated a new round of I-9 audits.  Although ICE has not yet issued a public announcement about a new wave of audits, there have been multiple reports of businesses receiving Notices of Inspection beginning last Wednesday, November 2, 2011.  Our July 1, 2011 Modern Workplace blog post provides information regarding the I-9 audit process and tips for how to respond to a Notice of Inspection.
    In light of ICEs continued focus on I-9 audits, it is now more ...
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    Performance reviews can be a managers least favorite part of the job. They can be uncomfortable, confrontational and emotional. So, often, instead of addressing incidents of misconduct or poor performance with the employee, managers avoid the issue, and may even give a neutral or positive review. Then, when the manager concludes that discipline or termination are warranted, there is no documentation to back-up assertions of negative job performance, which can make things difficult if an employee later claims the action was taken for unlawful reason.  But even leaving aside the ...
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    As written about previously on this blog, there has been a major shift recently from closed source work technology to open source work technology. Many employers are allowing their employees to use their own personal devices, be it smartphone, tablet or laptop, at work. From the employers side this can increase productivity, but can create confidentiality issues. Also to be taken into account are technology problems. The more power and control technology has over our lives the more vulnerable we are to viruses, mistakes and software problems. What can go wrong? Many things.

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    Technology can change faster than policies, procedures and people. There is a gap between how generations work and communicate - yet they have to work together. The articles here focus on the newest ways we use technology in our lives and workplace, and whether the new is better than the old.
     
    Technology and the Workplace
    Only those 35 and Younger, Gen Y Capital Partners Fund Young Tech Entrepreneurs Only (TechCrunch)
    When Will Employees be Replaced by Robots? In New York Casinos, Now. (Gizmodo)
    Employees and Ipads: Bonuses, Gifts and Hearing Aid Adjusters? (Star Tribune)
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    In its 2010 Term, the Supreme Court issued a number of interesting opinions on employment law topics such as class action lawsuits (invalidating a class action brought by 1.5 million current or former Wal-Mart employees), retaliation and Title VII (allowing a third-party to bring a retaliation claim because of association under Title VII) and immigration (allowing states to punish employers for hiring unauthorized workers).
    The Courts 2011 Term has fewer high-profile employment law cases, but a few cases are worth watching, including:
    Hosanna-Tabor Church v. EEOC is of ...
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    Immigration is among the thornier and most complicated of all political issues, and also one of the most consequential to employers.  A representative example: The current debate surrounding the federal worker eligibility status database, E-Verify.

    One would think a program whose origins lie in legislation passed under Reagan, piloted under Clinton, expanded under George W. Bush and championed by the Obama administration would garner broad bipartisan and popular support.  Instead, it has been forcefully opposed by groups spanning the ideological spectrum, from the ...
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    When confronted with an intensive, time-sensitive writing project, there's nothing I like more than taking a day out of the office to set up shop at my kitchen table and crank the thing out in my jammies.  Apparently, I'm not alone.  According to a CareerBuilder survey, more American workers are working from home on a regular basis, and 30 percent like to do so in their pajamas (41 percent of females and 22 percent of males).  The more startling statistic in CareerBuilders report is that nearly one in five Americans who work from home spends less than an hour per day doing actual work.  This ...
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    As we follow the tech trends in this space, the fortunes of Google and Apple continue to grow and, alas, RIM, the maker of Blackberry, continues to struggle.  Blackberries remain an integral part of many workplaces, but it is clear that a growing number of employers will allow, provide or encourage employees to choose other devices, and that the Blackberry's share of the corporate marketplace will, at least in the near future, continue to tumble.   Privacy, security and training issues for employers are all impacted by the choice of smartphone device.   This is a trend we ...
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    CNN Money.com reported this week that the number of wireless cell phone and tablet devices in the U.S. has outpaced the U.S. population.  With all of this connectivity going on, it could be easy to forget that not everyone has equal access to the internet and an equal ability to apply for jobs online.  Studies in recent years indicate that minorities and disabled individuals, as a group, have less or different access than Caucasians and non-disabled persons.  As a result of this disparity, often dubbed the digital divide, employers should tread carefully in establishing exclusive online ...
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    We featured Steve Jobs in this space only a short time ago when he retired as CEO of Apple, and his death this week has compelled us to showcase Jobs again.  Many, many tributes and remembrances were written this week, and you can find a few that provide insight into Jobs' vision, personality and legacy below.
    For the last several weeks we've featured articles that explore prospective employer recruiting, information-seeking and monitoring via social network research. A recent start-up, Reppler, helps people manage their online professional and personal repuation.  A survey ...
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    A recent article in the New York Times highlighted, yet again, the significant challenges faced by employers when they try to balance the possibilities of technology with the need to protect company data.  That article  discussed allowing employees to conduct company business through the use of their own personal computers and devices.  This development is being referred to as the consumerization of I.T.  In a nutshell, consumerization of I.T. represents a significant shift away from a closed technology system, in which an employer supplies all computers or other devices (such as ...
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    Privacy is the issue of the week, as we attempt to keep up with a litany of exciting/alarming/fascinating developments.
    One of the more interesting reads of the week is a blog post from the Harvard Business Review that describes the implications for employees, job seekers and companies of Facebook's newest feature, Timeline.  Timeline is Facebook's vehicle for creating a user biography in words, photos, video, music, etc.  How much of your biography do you want your colleagues to see?  A potential employer?  
    In the European Union, plans continue to propose "right to be forgotten ...
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    In the course of defending employment discrimination claims, I've had the opportunity to review thousands of emails produced by clients.  Most often, were hoping that the emails will provide documentation of performance concerns or otherwise validate the company's legitimate, non-discriminatory reasons for its actions.  Many times, we find ourselves in luck and are able to do just that.  More often though, we find emails that aren't very helpful. Those types of emails can range from content that makes the supervisors frustration with an employee quite obvious (i.e. forwarding an ...
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    "Can't repeat the past? . . . Why of course you can!"
    The Great Gatsby, F. Scott Fitzgerald
    This week, we thought we'd catch up on some trends and themes visited over the last several months in this space.
    The New York Times featured the trend of employers who allow their employees to choose their own laptops, smartphones, etc. for work purposes, a trend we'd mentioned a few months back.


    Hewlett Packard fired its CEO and hired Meg Whitman, formerly of EBay.  The Wall Street Journal asks whether HP's board has historic qualities.

    Research in Motion, maker of the Blackberry ...

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    The latest American Community Survey data shows that just over 2% of the U.S. workforce, not including the self employed or unpaid volunteers, considers home their primary place of work. That's about 2.8 million employees. Some estimates conclude that 20 to 30 million employees work at home at least part time.  Many people believe that the number of telecommuters will increase over the next few years as technology improves and employers learn how to adapt to employees who are not present in the workplace.
    Issues such as oversight, trust, and the ability to interact are all important to an ...
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    How do employees spend their time at work?  They perform work duties, of course, but a few other things as well.  For example, might they manage their fantasy football teams?  Sure.  According to the Fantasy Sports Trade Association, 32 million people play fantasy sports, the most popular of which is fantasy football.  Play games on their phones?  Yep, that too.  Surf the web?  You bet.  How concerned should employers be about their workers' time trolling the web and playing games?  While every employer should be very interested in what their employees do (and don't do)during work hours, a recent ...
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    This week a story about workplace violence caught my eye.  More employers are turning to the use of technology--namely video surveillance cameras and similar high-tech security measures--to monitor employees and prevent theft and other kinds of misconduct.  Many employers have relied on this technology to successfully defend against claims of discrimination and wrongful termination when employees are caught on tape violating company policy or stealing.  But this story involves a twist.
    In May, pharmacist Jeremy Hoven was working the overnight shift with three other employees at ...
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    Michael Stern Hart died this last week.  Hart is credited with creating the first e-book in 1971 by typing the text of the Declaration of Independence into a computer and making it available for downloading via Arpanet, the government-sponsored predecessor to the internet. Hart personally added many more canonical texts through the years, and when the web exploded so did his project, which he called Project Gutenberg.  The database now contains 30,000 books in sixty languages.  Volunteers add hundreds of books each month, making works mostly within the public domain available for free ...
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    As discussed in the previous post, protecting a companys confidential business information and trade secrets is increasingly problematic in this era of electronic communication.   Even if an employer has the most detailed and well-written policy regarding the use and disclosure of confidential business information, it must take steps to ensure that the policy is being followed by employees.  If the employer fails to do so, or fails to take disciplinary action when the policy is violated, it may lose its ability to succeed on a legal claim for misappropriation of that information.  More ...
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    This summer the Office of Management and Budget (OMB) issued a memorandum to the heads of executive departments and agencies in the federal government about implementing security guidelines relating to the Telework Enhancement Act of 2010. It is a good reminder that, while there are lots of benefits to allowing employees to telecommute, employers need to be cognizant of protecting their systems and data from the risks associated with telecommuting.  It is also a good starting place for thinking about what should be in your policies and procedures.
    In December of 2009, President Obama ...
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    In this era of ever-expanding web-based presences for businesses and the increased use of social media sites for job-related reasons, it is becoming much more difficult for employers to protect their important confidential business information and  trade secrets. 
     Businesses have a lot to lose when employees misuse confidential information. If a customer list, the details of a proprietary product, or company financial information gets into the hands of a competitor, a business may lose its competitive edge or its best customers. On the other hand, failure to use the power of the web ...
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    The decision of the Department of Justice to block the proposed merger of AT&T and T-Mobile dominated this week's technology and legal news.  The antitrust case is before the court in Washington D.C.  Because the ultimate result will have an enormous impact on consumers of telecom services, both individuals and companies, this is definitely a matter worth watching closely.
    According to a Pew survey, nearly two-thirds of adults in the U.S. use social media.  Now thoroughly mainstream and ubiquitous, how long will it be until social media is retired as a "hot" issue and becomes just ...
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    Posted in Immigration
    Are you contemplating filing an H-1B petition for a current or potential employee?  On August 26, 2011, the United States Citizenship and Immigration Services (USCIS) announced that it has received approximately 29,000 cap-subject H-1B petitions that were counted towards the 65,000 Fiscal Year 2012 cap.  Additionally, USCIS accepted roughly 15,800 petitions towards the 20,000 visa cap for persons who qualified for the H-1B advanced-degree professional exemption.  As a reminder, Fiscal Year 2012 begins on October 1, 2011, and H-1B petitions filed for this allocation must have a ...
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    The cultural struggle over collective bargaining rights continues with the National Labor Relations Board (NLRB) announcement that it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.   Private sector employers already must have large bulletin boards to post the many government-required notices to employees about various workplace laws.  Now employers may need to upsize those bulletin boards to comply with the new NLRB rule requiring employers to let employees know about their collective ...
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    Okay - technology has done some wonderful things for all of us, including giving us the ability to store lots and lots of information.  But, do you really want to do that?

    Many employers are looking at ways to be more efficient by using technology to gather and store information about employees and applicants.  Employers store everything from names to social security numbers to discipline data on electronic systems.


    You may say, well that's just being efficient.  I'm all for efficiency, but employers need to be aware that they have to balance their need for information with the employees ...
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    Steve Jobs stepped down as Apple CEO this week.  Because of his health issues, this was not shocking news but it is a shock.  Apple without Steve is a bit like Disney without Walt.  The company will continue, of course, and likely thrive, but will not be led by the personal, idiosyncratic vision that created it.

    One notable practice that has led to Apple's success is the way in which it releases new products.  Many technology companies begin trumpeting new products long before their release, even before they have created usable prototypes of the products.  Tech enthusiasts have learned ...
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    One of the most litigated issues in todays employment arena is the classification of employees under the overtime exemption provisions of the Fair Labor Standards Act (FLSA). Generally, under the FLSA, employees must be paid overtime for any time worked over forty (40) hours per week. However, the FLSA also classifies certain types of positions as exempt from the overtime requirements. In order to qualify for the exemption, the employee must meet the specific requirements of each exemption. Unfortunately, many employers wrongfully classify employees as exempt when, in fact, the ...
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    The General Counsel (GC) for the National Labor Relations Board (NLRB) plays a major role in deciding which cases the agency will prosecute and which legal theories it will apply in making those prosecutorial decisions.  This means the GCs recent analysis of fourteen separate social media cases (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) is highly instructive for the many employers and their lawyers who have been closely watching the NLRBs enforcement activity in this ...
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    Our last post set out some of the key points for employers from the recently-published analysis of social media cases by the General Counsel (GC) for the National Labor Relations Board (NLRB).  (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases)  In this post we set out some of the key points about employer policies and employee handbooks gleaned from the GCs analysis. 
    Most private employers are covered by the National Labor Relations Act (NLRA) and need to be mindful of the GCs ...
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    The headline news this week is the report from The National Labor Relations Board summarizing recent social media opinions and offering additional guidance.   Analysis from commentators and bloggers is only beginning to appear online, and we will be sure to include the most relevant and incisive articles in future postings.  Our impressions are posted just below.

    In the broader world of technology, HP's decision to stop producing Web OS products and sell their TouchPad tablet at the fire sale price of $99 prompted comments from legions of tech bloggers.  The most concise ...

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    A recent survey suggests that a great many companies are using social media to screen potential hires.  In many ways this seems like a modern no-brainer.  Social media sites provide easily accessible insights into the personal and professional lives of people we don't know in ways that would have seemed unimaginable only a short time ago.  Of course, as discussed in some of our previous blog posts, there are legal risks in using social media to screen applicants and in making employment decisions.  Are you accessing data that you're prohibited from using in your decision-making ...
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    The proliferation of social media has presented businesses with many challenges as well as many opportunities.  To address the challenges, employers have adopted policies aimed at guiding employees on appropriate use of social media.  Due to the slow pace at which cases make their way through our legal system, there is a dearth of published court opinions analyzing the propriety of such policies.  A recent Minnesota Court of Appeals decision is one of the first in this state to provide such guidance.  Although the case involved a student disciplinary matter at a public university, the ...
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    Many analysts from both sides of the ideological fence believe that the economy as a whole may suffer in the wake of the recent debt ceiling deal.  Few believe that the bill offers much to aid job creation or brighten the immediate prospects of the unemployed.  It is hard to find a single opinion piece, news article or blog post, regardless of political orientation, that does not express profound distaste for the compromise.
    So who is (relatively) happy with the bill?  Government technology workers seem to have escaped  the wrath of a measure that seeks to cleave ...
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    The U.S. Chamber of Commerce just released a Survey of Social Media Issues Before the National Labor Relations Board (report available here and reported on here). The report summarizes of NLRB actions involving social media and related issues. According to the Chambers review of more than 129 cases: 
    The issues most commonly raised . . . allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
    Technology provides employees and unions with ...
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    Fewer employers are choosing the brand of smartphones that their employees use for work. According to recent surveys, an increasing number of companies offer reimbursement based on a "Bring Your Own Device" (BYOD) policy.  Not surprisingly, this has undermined sales at Research in Motion (RIM), the largest provider of enterprise smartphones selected by employers.  RIM, maker of Blackberry smartphones, has seen its prospects dim as more employees choose iPhones and Android-based smartphones and ask their company to support work use.

    Though warning signs have been noted ...

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    If you're a non-union employer, you may be under the impression that the machinations of the National Labor Relations Board are not relevant to you and your business. You may be wrong. For one thing, employees have rights under Section 7 of the National Labor Relations Act whether the workforce is unionized or not. The Board has made it clear that it will pursue charges against non-union employers for violating these rights, specifically for policies that interfere with employees right to engage in concerted activities for the purpose of . . . mutual aid or protection. What that means is ...
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    From Merriam Webster: Luddite -one of a group of early 19th century English workmen destroying laborsaving machinery as a protest; broadly : one who is opposed to especially technological change.

    Why do I start with a definition of the word Luddite? Quite simply, I'm probably at least in part a Luddite. I use technology every day; yet, I am reluctant to embrace much of the new technology. That may sound strange coming from a person who is writing on a blog about technology, but alas, it is true. Interestingly, every time I have been forced to use a new technology I have eventually embraced ...
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    Last week, Apple announced that it would begin offering volume purchasing for iOS apps. A week later, the App Store Volume Purchase Program is now open for enrollment. The Volume Purchase Program (VPP) allows businesses to make bulk purchases of apps, although Apple currently does not offer discounts for buying in bulk (insert joke about how expensive Apple products are here).  However, the VPP allows businesses to purchase, customize, and distribute iOS apps throughout the enterprise.

    So what does this development mean for employers? On the one hand, the VPP gives employers more ...

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    As I personally lament Netflix's unbundling of its online services and its price hikes, it occurs to me that the price increase could be good news for employers at least those with employees who find it appropriate to watch TV shows and full length films on the job. A recent study conducted by Harris Interactive and Qumu revealed that 17% of those surveyed watch videos at work, consisting of, in order of the most viewed videos: news clips (25%), viral videos (15%), videos on social networking sites (12%), sports clips (11%), TV shows (9%), full length films (4%), and porn (3%).

    The June 2011

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    Over the last year, Regional Directors of the National Labor Relations Board have initiated several high-profile complaints against employers for policies and conduct related to social media.  (See Megan Anderson's article about this trend here.)  In these complaints, the NLRB has alleged that employers violated Section 7 of the National Labor Relations Act by maintaining overly broad social media policies or by disciplining employees for protected concerted activity (or both).  However, many of the cases have settled, and none have advanced to trial, leaving a trail of ...

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    This weekend, Harry Potter fans everywhere are celebrating the last film in the series based on J.K. Rowling's novels about a magical world of witches and wizards. No matter your opinion of the books, none can deny that the world of Harry Potter has become a popular culture phenomenon. When the film debuted on Thursday, it broke the box office record for a midnight showing.


    As a fan of the series, I have to admit that I was tempted to attend the midnight showing of the series finale. However, I know myself well enough to know that I would not be able to function at work well the following day, so I ...

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    Photo by Joseph Holmes (via Bits)
    As always, the world of technology never seems to slow down.  This Week in Review includes articles about a Presidential Town Hall on Twitter, hackers galore, and the online fallout of the Casey Anthony trial.  Among all the news of the week, I was captivated by the New York Times coverage of Joseph Holmes's online series of photographs entitled "Texters."  The series depicts individuals around New York City peering down at their smartphones, completely absorbed in the world of technology and often oblivious of their surroundings.

    Besides providing an ...
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    Earlier this week, I wrote about the speed of change in the world of technology. The next day, Google announced its latest entry into the social media world: the Google+ project. The Google+ project aims to challenge Facebook with features such as "Circles" for sharing of information with smaller groups, "Huddle" for group messaging, and "Hangouts" for video chatting. Although these features exist in other tools and networks, the combination in one platform could ultimately make Google+ a worthy rival to Facebook.

    So what does this development mean for employers?  For the time being ...

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    Posted in Immigration
    You may have noticed a slight chill in the air a couple of weeks ago when, for the second time this year, the U.S. Immigration and Customs Enforcement Agency notified 1,000 employers that it plans to inspect their I-9 records.  The Notices of Intent to Audit (NOI) that were issued on June 15, 2011, bring the total number of companies audited by ICE to more than 2,300 for this fiscal year, which already surpasses last years record of 2,196.  According to a statement issued by ICE, the employers affected by this most recent round of audits were selected primarily based on tips and leads, though ...
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    This Week in Review illustrates the Wild West that is the world of technology.  Several stories from this week discuss events no one could have imagined ten years ago, including arrests of the members of the LulzSec hacking group, a looming FTC antitrust probe of Google for its dominance of the internet search market, and, of course, another take on the Rep. Anthony Weiner scandal.

    In the midst of these developments, a story about the recent anniversary of the Listserv caught my attention.  Listserv, the first automatic email delivery software, just celebrated its 25th year.  In many ways ...

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    Data security breaches have been in and out of the headlines recently, and the Citigroup breach has once again brought the topic to the forefront.  This week, Citi announced that more customers than originally announced had information stolen by hackers.  All told, Citi reports that approximately 360,000 customer accounts were compromised.  Even more troubling, Citigroup does not even know how the computer breach occurred, only that it affected hundreds of thousands of its credit card customers by revealing names, account numbers, and contact information.

    Although Citigroup may ...

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    This week, Facebook once again stirred controversy with its recent changes to its privacy policy. Once again pushing the boundaries of online privacy, Facebook now automatically opts users into facial-recognition technology. The technology compares pictures posted on Facebook to a central repository of identified photos, and then asks friends of the person it recognizes to "tag" the user in the photo.


    So what does this development mean for employers? In the short term, more information. Users who have not opted out of the technology may find themselves identified and tagged by ...

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    The recent attention given to Apples announcement of its iCloud internet-based online storage service is yet another indicator of the growing popularity of cloud computing, or using online data storage for files that can be accessed and managed anywhere using an internet connection. Instead of saving your files and data to your own device, you save them in a cloud, or web-based file cabinet. Google has offered this service to consumers since 2005 with its Google docs service. Now Apple is joining in, offering a free service that will basically allow users to mirror their iTunes ...

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    Although this work week was shortened by the Memorial Day holiday, there were plenty of stories in the world of technology, law, and the workplace.  Maybe it's because I just (finally) saw The Social Network, but the news about San Francisco start-up Hipster's unique search for employees stood out to me. Hipster, looking for engineers, has taken to the web with a hilarious (though somewhat concerning) pitch:  they are offering $10,000, a year's supply of Pabst Blue Ribbon beer, and an assortment of hilarious "hipster" accessories, such as a fixed gear bicycle, skinny jeans, and even ...

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    The subject of employees' email privacy comes up a lot, both in this blog and in employment law and litigation generally.  Last week's Week in Review, for example, cited a federal court judge's decision that an executive's emails, sent to his wife from his work computer,  were not protected or privileged, and could be used as evidence in a securities fraud case.  Evidence gleaned from emails shows up in many, if not most, harassment cases, and emails are a common source of evidence about the legitimacy of an employer's "non-discriminatory business reason" for an adverse personnel ...
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    Do you believe in the saying that bad things come in threes?  Well, at least for employers, that saying rings true this week given the announcement that the National Labor Relations Board (NLRB) has filed a third labor law complaint related to adverse employment actions allegedly based on Facebook postings by employees.  The increasing frequency with which the NLRB is seeking to enforce its stance on Facebook postings is further reason for employers to consider adopting carefully drafted social media and technology policies, related policies on solicitation and distribution in the ...
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    The New York Times ran an article this week that discusses the U.S. Army's increased use of social media to reach out to recruits. In short, the U.S. Army has launched a mobile application and is increasing efforts to reach out to new recruits via social media, including a Facebook page and a mobile blogging web page. Although I wrote about this development in a previous post, this week's article stood out to me in light of the upcoming Memorial Day holiday.

    While change in recruiting tactics is nothing new for the U.S. Army, this story provides an interesting reminder to employers ...

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    This week, the National Labor Relations Board once again waded into the controversial waters of social media. Earlier this week, the Regional Director in Buffalo, New York issued a complaint against a nonprofit employer for its discharge of five employees based on statements made by the employees on Facebook. According to the NLRB's press release:
    The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworkers allegation that employees did not do enough to help the organizations clients. The initial post ...
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    Last week, I provided some training to a clients HR team on conducting investigations.  As we were working through some hypothetical situations, the discussion turned to accessing employees emails.  The group knew that their company's policy addressed accessing the emails of current employees, clearly warning company email is not private and that it could be accessed or monitored by the company.  That being said, one individual raised concerns about accessing a recently departed employees emails.  She was concerned about who should have access to the email, and for what purpose and ...
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    As Megan Anderson wrote in her post "Does Your Company Have a "Workyard" Bully?," proposed anti-workplace bullying legislation is on the rise across the country.  Earlier this month, the trend made its way to the Land of 10,000 Lakes, as Minnesota became the 21st state to introduce workplace bullying legislation
    The legislation, introduced as S.F. No. 1352, has been referred to the Minnesota Senate's Jobs and Economic Growth Committee.  A companion version, H.F. 1701, was introduced in the Minnesota House of Representatives and referred to the House Commerce and Regulatory ...
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    This Week in Review highlights the divide between on-duty and off-duty conduct of employees. Several articles from the last week involve stories about employee use of work computers to check Facebook and personal email, look at pornography, and access confidential medical information. This weeks round-up also features articles addressing the uncertainty faced by employers who attempt to regulate the off-duty conduct of employees. Although a recent NLRB Advice Memorandum upheld discipline of an employee for controversial statements on Twitter, another article asks whether ...

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    The U.S. Department of Labor has an app for that. On Monday, the DOL announced the launch of its DOL - Timesheet App, for iPhones (click here to download the app on iTunes). The application provides employees with an easy way to keep track of their working time. It also allows employees to add notes about time entries and easily export the entries. There's even a glossary with links to the DOL website, meant to educate employees about their rights under the Fair Labor Standards Act.

    Here's what the DOL says about the use of the DOL - Timesheet App:

    This new technology is significant because ...
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    The worlds of technology and labor and employment law are always on a collision course, but this last week these areas seemed to intersect even more than usual. (Maybe I just have David Foley's "Worlds Colliding" post on the brain.) This week witnessed a host of news about technology-related employment and labor litigation, including settlement of the NLRB's threatened complaint against Thomson for the news organization's social media policy. Stories about the theft of customer payment information from Sony have also dominated the technology news, coming in the wake of the recent ...
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    In a consumer products case that will likely have a significant impact on employers and employees who enter into arbitration agreements, the U.S. Supreme Court ruled last Wednesday, April 27, 2011, that the Federal Arbitration Act preempts states from prohibiting enforcement of arbitration agreements that bar arbitration of class action disputes (AT&T Mobility LLC v. Concepcion, Docket No. 09-893, April 27, 2011). In a divided decision, the Court reversed a Ninth Circuit Court of Appeals decision that a class action arbitration waiver in AT&Ts wireless service agreement was ...

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    This Week in Review comes to you from the ABA Symposium on Technology in Labor & Employment Law. The presentations have been diverse and interesting, exploring the cutting edge of technology in labor and employment law. The presentations have run the gamut, from issues with trade secrets to social media in the global workplace to a survey on the latest electronic invaders in the workplace. (You can read my paper on robotic technology in the workplace here.)

    I'll report back in future weeks on some of the topics we've discussed at the symposium. In the meantime, enjoy this Week in ...
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    The news last week about iPads and iPhones regularly recording geographic locations in a hidden file raises yet another challenge for employers. Consider the possibilities:
    An employee complains that a supervisor who has her iPhone number in order to reach her for work reasons has been calling her repeatedly asking her out on dates and he is showing up where she goes after work with her friends. She suspects he may be tracking her every move using her number.

    A line supervisor reports to HR that an employee has been lying about illness as the reason for frequent absences and shares that he ...
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    Privacy and secrecy in the workplace. It's kind of a touchy topic, isn't it? On the one hand, both employers and employees expect that information that they consider to be private will remain private. But on the other hand, both employers and employees often wonder about the secrets that the other is keeping from them.

    This week's stories showcase the huge impact of modern technology on privacy and secrets in the workplace. From the iPhone location-tracking data scandal to employee recordings of workplace conversations to digital warning signs of an imminent employee departure, the ...
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    We all knew schoolyard bullies, and, if we were lucky, they left us alone.  The less fortunate, however, sometimes suffered devastating and long-term effects from bullying.  Society has increased its focus on school bullying over the years.  New challenges have also arisen, however, as bullying has moved into cyberspace with widespread impact.  We continue to strive, however, to provide children with safe, healthy environments in which they can flourish and meet their full potential.

     
    But what about our workplaces?  Does your company's environment allow employees to thrive and ...
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    The news this week is another reminder that, although technology may appear to change everything, the same basic laws apply.  If you screen applicants via Facebook, the same background check and discrimination laws will apply.  If an employee engages in protected activity on social media, then protected activity laws still apply.  And if an employee sues you, you can seek discovery of social media evidence on the same basis of as other evidence.  These stories, and more, are discussed below.


    As Apple's recent ad for the new iPad says, "technology alone is not enough."  Employers must ...
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    Posted in Hiring & Firing
    I recently finished teaching Employment Law to a group of students at Bethel University.  The class was comprised of students who are going back to school to finish their four-year degrees, with most students majoring in Human Resource Management.   Each class period involved a lot of discussion, with students contributing stories from their current or former employment experiences. 
    During our discussion on background checks, one student shared a story about what her company discovered when it did a quick Google search before offering a candidate a position.  The company was hiring a ...
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    The worlds of technology and data privacy collided this last week.  On Friday, Epsilon issued a press release disclosing that the names and email addresses of the marketing company's customer data were compromised.  Although Epsilon claimed that only a small subset of clients were affected, I received notices throughout the week from financial companies, travel companies, and other service providers letting me know that my email address and name may have been compromised.


    The Epsilon story highlights a growing concern for employers about the security of confidential ...

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    Posted in Discrimination
    For many years now, employers with more than 15 employees have had a legal duty to make "reasonable accommodations" that allow qualified workers with disabilities to successfully perform their jobs. Such accommodations - everything from ramping stairs to TTYs to adjusted work hours - are meant to level the playing field. There are limits to this mandate, of course: employers may not be asked to suffer "undue hardship" in order to provide accommodations. Courts and commentators have written millions of pages about what's reasonable and what's an undue hardship, but in the end it's ...
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    This week's round-up seems to focus on the small world of the tech industry.
    Facebook is in the news for privacy concerns, and is said to be hiring former White House Press Secretary Robert Gibbs. Google is introducing a new social tool, +1, just on the heels of its settlement of a privacy charge brought by the FTC. And, finally, the Wisconsin Labor & Employment Law Blog reports on the small world of skilled technology employees: the FTC has filed high-profile antitrust complaints against companies like Lucasfilm and Adobe Systems for allegedly anti-competitive employment ...
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    As I wrote about earlier this week, Campbell Mithun made waves last week when the Minneapolis-based advertising agency <a "="" href="http://www.fastcompany.com/1742560/tweeting-your-way-to-a-summer-internship?partner=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+fastcompany/headlines+(Fast+Company+Headlines)" title="http://www.fastcompany.com/1742560/tweeting-your-way-to-a-summer-internship?partner=" utm_campaign="Feed:+fastcompany/headlines+(Fast+Company+Headlines ...
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    On Monday, the United States Supreme Court agreed to hear yet another significant employment law case in its 2010-2011 term.  The case, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, addresses the controversial ministerial exception to discrimination laws.


    According to the school's petition (via SCOTUS blog), the question presented to the Supreme Court is:
    [w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches ...
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    After a week out of the office, I am returning for duty at The Modern Workplace. And why not start the week off right with a Week in Review summary?

    Given the material covered by this expanded summary, I wont add my own spin on the news in the world of technology and labor and employment law. However, watch for an article later this week on hiring for technology jobs, one of the hot topics discussed below. This is an area where there seems to be a perfect storm of an expanding industry and increasing government interest.

    Without further ado, your week in review!

    Technology in the Workplace
    • Silicon ...
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    Posted in Immigration

    In an era of increasing worksite enforcement, many employers are turning to technology to assist in their compliance with immigration laws. For example, in recent years, new technology has emerged that allows employers to electronically store their Forms I-9. An electronic I-9 retention system may allow quicker completion, fewer mistakes, easier retrieval and a more accurate way to flag documents.

    In July 2010, the Department of Homeland Security (DHS) finalized a regulation intended to provide more flexibility for employers to electronically sign and store I-9 forms. Until ...

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    It was another busy week in the world of technology and employment and labor law.  Mercifully, the Charlie Sheen uproar seems to have tapered off for the time being (although you can now watch his online rants on Ustream).  Perhaps even more shocking, Eric Meyer at The Employer Handbook reported on a sexting case that turned out surprisingly well for an unprepared employer (dont expect to be so lucky if you repeat their mistakes).  Other stories from the week include a great summary of some of the wage and hour issues associated with telecommuting, updates in the WikiLeaks/Bank of America ...
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    The news this week in the world of labor and employment law and technology can be summed up in two words:  Charlie Sheen.  (I would have also accepted Tiger Blood.)  Our own Megan Anderson wrote about the fiasco and its lessons for employers about responding to negative statements on the Internet.  One day later, Sheen filed suit in California state court, alleging a variety of claims includingas Jon Hyman predicteddisability discrimination!
     
    Although the news coverage (and, lets be honest, your Facebook news feed) made it seem like Charlie Sheen was the only big news story this week, there ...
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    We increasingly live in an electronic world where entertainment news articles about movie and TV stars are featured adjacent to articles about important technology, political, legal, and world events. No star is in the limelight these days like Charlie Sheen, and his recent antics have the mainstream media telling us that Sheen can teach us a thing or two about how to conduct ourselves in the workplace in this increasingly electronic age.

    This week, Charlie Sheen was fired from his hit TV show, and CNN.com posted an article stating that Sheens conduct demonstrates the perils of ...

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    You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...

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    In my last post, I cautioned employers about using information that it learns about its employees through social networking sites. A few more thoughts on that. With employees posting running accounts of their daily activities on social networking sites, its quite tempting for employers to want to take a peek at what employees are saying about how they are spending their work day or what theyre doing on a day when they are supposedly missing work because of an illness or injury. Its even more tempting for employers to want access to this information when the employee in question has been a ...

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    This week, the technology world was abuzz with the announcement (and, of course, pre-announcement rumors) of the iPad 2. Apples newest contribution to the tablet market promises to provide further steam to the mobile computing movement.

    Fittingly, a number of blogs and articles this week discussed the impact of mobile computing devices on the workplace. Sexting, of course, remains a serious problem. In an amazing turnaround, many employers and even the U.S. Army are now encouraging employees to blog. One article even talks about online tools for women to report harassment they ...
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    Posted in Health Care, Leave

    One can hardly turn on the news without seeing coverage of the stand-off in Madison, Wisconsin between Governor Walker and union protesters over the Governors proposal to require government workers to contribute more to their health care and pension costs and to largely eliminate their collective bargaining rights. Many protesters who called in sick to attend the protest rallies were allegedly able to obtain sick notes from doctors who were providing sick notes at the protest rallies without any medical examination. This raises an interesting questionwhat is an employer to do when ...

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    The news of the last week has been a particularly interesting illustration of the promise and perils of technology, particularly related to social media. On the one hand, Facebook and other social media outlets continue to be used as tools to organize protests and spur on the cause of revolution in countries where citizens have long been oppressed and felt powerless. On the other hand, there are several stories from the last week about employees sharing confidential information (including pictures of medical patients), complaining about workplace conditions, or even Tweeting ...
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    Employment Practices Liability Insurance (EPLI) has been around for about 20 years now, and for some employers it has been a good investment. For others, it has been a disappointment, and for still others it remains a mystery. My own view is that every employer should consider adding EPLI to its insurance coverage, but should do so with a clear understanding of EPLI's limitations and cost.

    So, what should employers expect and what should they watch out for when they shop for EPLI? That's the focus of today's post.

    Employers should first understand what, if any, coverage they have for ...

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    The Gray Plant Mooty attorneys behind The Modern Workplace are devoted to exploring current issues in employment and labor law. We are particularly interested in The Next Big Thing, our shorthand for the many ways that technology is revolutionizing both the world we live in and the workplace. Each week, we will provide a summary of interesting news and blogs involving technology and law, especially the law of the workplace. This week marks the first of our TNBT: Week in Review features on The Modern Workplace.

    The buzz this week in the world of technology is Watson, the IBM computer that ...
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    I'm not normally one to read advice columns in newspapers. However, Mondays Ask Amy column in the Star Tribune was right up my alley. The column tells the story of a customer service employee who was fired because an angry customer tweeted about her experience with the employee and got the attention of corporate headquarters.

    This story comes on the heels of the news last week that a settlement was reached in the nationally publicized Facebook firing case. In that case, the NLRB filed a complaint against an ambulance service company that fired an employee for venting about her supervisor ...
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    Today we celebrate Saint Valentines Day, the annual commemoration of the martyrdom of Saint Valentine at the hands of the Roman Emperor Claudius II. Of course, we now celebrate this holiday by giving our loved ones heart-shaped candy and greeting cards! Although this may seem a strange cause for celebrating love, there is a romantic legend behind this otherwise morbid holiday. According to legend, the Christian priest Valentine was executed because he was performing marriage ceremonies for young men and women in violation of Roman law. Although this legend is now widely ...

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