The Modern Workplace
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” ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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:
- On May 25, Partners Bridget Romero and Brian Woolley presented at the 34th Annual Conference of the Heartland Labor and Employment Law Institute, held in the Kansas City area. Bridget co-presented a session on “COVID-19 and the Workplace: The ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
A: California employers (including public entities) with more than 25 employees nationally.
Q. Who is eligible for the SB 95 leave?
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 ...
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 ...
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 ...
- Time off from work to get vaccinated, often with pay
- Incentive bonus (for example, $100)
- Gift cards
New Test
The Final Rule implements a five-factor economic reality ...
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 ...
The guidance document identifies the standards that are most frequently cited in coronavirus-related OSHA inspections and ...
- Check the COVID-19 infection rates in your area, which can be accomplished by consulting the applicable state and local health ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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:
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 ...
- 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 ...
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 ...
- Paid leave (generally).
- Medical leave.
- Family leave.
- Work shift scheduling requirements.
- Wage theft ...
- What to Do When You Shut Down Your Business Due to Inclement ...
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.
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 ...
Not surprisingly ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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 ...
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 ...
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 ...
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 ...
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 ...
While the presidential inauguration is front and center, here are two quick items employers will want to take note of:
-
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.
-
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 ...
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 ...
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 ...
In our September 23rdpost, 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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
- 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
The Minnesota ...
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 ...
Anti-Retaliation Requirements:
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 ...
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 ...
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 ...
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.
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 ...
Just a few of the employment and ...
The Minnesota unemployment law generally provides that employees terminated through no fault of their own are entitled to benefits. Individuals who voluntarily quit ...
The executive order is one of the methods the Obama administration has chosen to ...
In the Burrows case, the plaintiff, a college administrator, sued her former employer, claiming she was ...
In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by ...
The increased salary issue was expected to reach the boiling point with the release of the final DOL rule in ...
Retaliation claims are increasingly common, because virtually ...
The tugboat captains case makes painfully clear that identifying and ...
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 ...
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.
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 ...
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 ...
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 ...
Under fundamental principles of contract law, a contract must be supported by ...
The Final Rule
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; ...
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 ...
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 ...
Since the ADA was enacted, the landmark law has been expanded by the enactment of the ...
The fifteen page document outlines the familiar multi-factor economic ...
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 ...
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 ...
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 ...
Phase 1 of implementation ...
Fortune found, however, that employers have used the term in a way that could ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...