If you are an employer covered by the federal Fifth Circuit (Texas, Louisiana and Mississippi), you are probably familiar with the “ultimate employment decision” standard: In determining whether an employee suffered an...more
Non-compete clauses in employment agreements have been the source of much controversy over the years. Employers want them to protect their human capital and to prevent competitors from stealing their valued employees....more
For employers, figuring out what constitutes an adverse employment action under Title VII may seem elusive. In general, an adverse employment action is an ultimate employment decision that affects job duties, compensation or...more
If you have or want enforceable non-compete agreements with employees, read on.
Here’s a hypothetical: You are looking to hire a salesperson, and you find just the right person, John. Your company has a great...more
Employment lawyers always win war story contests at cocktail parties. Facts like the ones in Davis v. ULP provide ample fodder for those type of conversations.
Performance Problems or Age Discrimination?
The...more
It looks like medical marijuana products may be available in the Magnolia state later this fall. As expected, it will be highly regulated and can only be used by registered, qualified patients who have been diagnosed with a...more
9/1/2022
/ Adverse Employment Action ,
Drug Testing ,
Employer Liability Issues ,
Employment Policies ,
Hiring & Firing ,
Job Applicants ,
Marijuana ,
Medical Marijuana ,
New Legislation ,
Reasonable Accommodation ,
State and Local Government ,
State Labor Laws
Accommodating an employee’s sincerely held religious beliefs can be tricky. In EEOC v. Kroger, a court in Arkansas gives some guidance on how to handle these claims. The case law surrounding religious failure-to-accommodate...more
6/28/2022
/ Corporate Counsel ,
Employees ,
Employer Liability Issues ,
Employment Litigation ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
Kroger ,
Reasonable Accommodation ,
Religious Accommodation ,
Religious Discrimination ,
Termination
Let’s say you are tired of your current position and want to try something new with the same employer. You apply for a job transfer, and you are turned down. Then you find out that other people were able to make the move more...more
Given the explosive growth of cannabis products and the increasing number of states that have legalized marijuana for medicinal or adult use (nearly 40 at last count), employers across the country are asking whether they can...more
4/22/2022
/ Americans with Disabilities Act (ADA) ,
Cannabidiol (CBD) oil ,
Cannabis Products ,
Decriminalization of Marijuana ,
Drug Testing ,
Employees ,
Employer Liability Issues ,
Employment Litigation ,
Employment Policies ,
Hiring & Firing ,
Marijuana ,
Medical Marijuana ,
Section 301 ,
State and Local Government ,
Termination
We are all familiar with the phrase “No good deed goes unpunished.” That apparently is the theme of an Eighth Circuit opinion reviewing an employee’s suit alleging that she was improperly denied an accommodation under the...more
In another chapter in litigation alliteration, in Maner v. Dignity Health, f/k/a Catholic Healthcare West, the Ninth Circuit held that a male employee’s theory that his supervisor’s long-term romantic relationship with a...more
9/9/2021
/ Discrimination ,
Employees ,
Employer Liability Issues ,
Employment Litigation ,
Employment Policies ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
Preferred Treatment ,
Retaliation ,
Sex Discrimination ,
Summary Judgment ,
Termination ,
Title VII ,
Workplace Romances
Add this case to your “Be Sure to Document Your Non-Discriminatory Reasons” file. An employee doing bad things lost on summary judgment in an employment discrimination action, even though she alleged that the company did not...more
11/1/2019
/ ADEA ,
Age Discrimination ,
Appeals ,
Dismissals ,
Employee Misconduct ,
Employer Liability Issues ,
Employment Discrimination ,
Employment Litigation ,
Equal Employment Opportunity Commission (EEOC) ,
Evidence ,
Failure to Investigate ,
Hiring & Firing ,
Summary Judgment
We’ve posted on this topic several times before but the battle between independent contractors and employees continues.
Here’s a brief refresher on the basics of why proper classification of employees as independent...more
6/19/2019
/ ABC Test ,
Department of Labor (DOL) ,
Economic Realities Test ,
Employee Definition ,
Employer Liability Issues ,
Employment Litigation ,
Gig Economy ,
Hiring & Firing ,
Independent Contractors ,
Misclassification ,
NLRA ,
NLRB ,
State Labor Laws ,
Wage and Hour
In Wittmer v. Phillips 66, Judge James Ho of the Fifth Circuit wasted no time stating the Fifth Circuit’s position on whether sexual orientation or transgender status are protected classes under Title VII – they are not....more
2/15/2019
/ Appeals ,
Gender Identity ,
Hiring & Firing ,
Interviews ,
Job Applicants ,
LGBTQ ,
Misrepresentation ,
Protected Class ,
Sex Discrimination ,
Sexual Orientation ,
Sexual Orientation Discrimination ,
Summary Judgment ,
Title VII ,
Transgender
You might have seen all the buzz about the Seventh Circuit’s recent decision in Kleber v. CareFusion Corporation holding that job applicants were not covered by the Age Discrimination in Employment Act (ADEA). Does that mean...more
Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers...more
1/7/2019
/ Americans with Disabilities Act (ADA) ,
Appeals ,
Corporate Counsel ,
Family and Medical Leave Act (FMLA) ,
Hiring & Firing ,
Interactive Process ,
Leave of Absence ,
Mental Health ,
Reasonable Accommodation ,
Retaliation ,
Summary Judgment ,
Traveling Employee
Many employers have progressive discipline policies. Are they always followed? Probably not. Should they be? Absolutely, and Lindeman v. St. Luke’s Hospital of Kansas City, a recent case in the Eighth Circuit, demonstrates...more
Employment lawyers and most HR professionals are familiar with the Faragher-Ellerth defense to a claim of sexual harassment. In short, if an employer can show that (1) it exercised reasonable care to prevent and correct...more
9/13/2018
/ Anti-Harassment Policies ,
Appeals ,
Complaint Procedures ,
Corporate Counsel ,
Dismissals ,
Employee Handbooks ,
Employer Liability Issues ,
Failure to Report ,
Faragher/Ellerth defense ,
Gender Discrimination ,
Hiring & Firing ,
Hostile Environment ,
Human Resources Professionals ,
Retaliation ,
Reversal ,
Sexual Harassment ,
Title VII
Can an organist really be considered a church minister? In a detailed and unique opinion, an Illinois federal court applied the First Amendment’s religious clauses to a church employee who claimed he had been discriminated...more
8/7/2018
/ Age Discrimination ,
Employer Liability Issues ,
Employment Discrimination ,
Employment Litigation ,
Evidence ,
First Amendment ,
Hiring & Firing ,
Ministerial Function ,
National Origin Discrimination ,
Religious Institutions ,
Retaliation
“You have to show up for work—it’s a part of your job.” Attendance at the workplace is an essential work function in an ADA case. But is it really anymore? With technology, some would argue that many jobs can be done from...more
7/20/2018
/ Americans with Disabilities Act (ADA) ,
Attendance ,
Employer Liability Issues ,
Family and Medical Leave Act (FMLA) ,
Full-Time Employees ,
Hiring & Firing ,
Interactive Process ,
Job Descriptions ,
Job Duties ,
Reasonable Accommodation ,
Reversal ,
Sex Discrimination ,
Summary Judgment ,
Work Schedules
Urine testing—not one of the more popular work activities. However, drug tests are part of safety programs throughout the country. Two recent events—one a court decision and one a potential legislative event—give me the...more
On January 5, 2018, the Department of Labor announced two employer-friendly changes applicable to interns and volunteers. Specifically, the DOL has adopted an employer-friendly approach to internships and has reinstated a...more
1/30/2018
/ Department of Labor (DOL) ,
Employee Definition ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Hiring & Firing ,
Internships ,
Misclassification ,
Primary Beneficiary Test ,
Regulatory Oversight ,
Regulatory Reform ,
Unpaid Interns ,
Volunteers ,
Wage and Hour
If an employee gets a doctor’s note saying she can’t participate in training because of a physical limitation, does that make her disabled? It might if you treat her like she is—at least that is what the Eleventh Circuit...more
1/17/2018
/ Americans with Disabilities Act (ADA) ,
Disability Discrimination ,
Employee Training ,
Employer Liability Issues ,
Gender Discrimination ,
Hiring & Firing ,
Job Descriptions ,
Race Discrimination ,
Reversal ,
Summary Judgment ,
Title VII ,
Unpaid Leave
The Fifth Circuit has issued another opinion in the continuing saga of Jackson State University and its past athletic director, Dr. Vivian Fuller—this one about retaliation against a witness. To refresh everyone’s memory: A...more
Around the end of October, a photo of a government contractor employee flipping the bird to President Trump’s motorcade went viral after the woman made it her profile picture on Facebook. She was subsequently fired for a...more