Robin E. Shea

Robin E. Shea

Constangy, Brooks, Smith & Prophete, LLP

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Employment Law Autopsy: “Old Fart” Gets Fired

Here’s a lesson: Don’t call your employee an “old fart,” especially if you think you may need to fire him someday. And don’t call his co-workers “old farts” right before you fire the co-workers. ...more

7/24/2015 - Age Discrimination Corporate Counsel Hiring & Firing Wrongful Termination

Document Review Attorneys May Not Be Exempt From OT, Court Says

Large law firms and legal services vendors often hire stables of contract lawyers to do document review in big cases. Sometimes, the lawyers who do the review are actually reading and analyzing the documents in light of the...more

7/24/2015 - Appeals Collection Action Contract Attorneys Document Review FLSA Unpaid Overtime Wage and Hour

Employees’ “Low-Tech” Sloppiness Causes High-Tech Problems

A good reminder for employers about maintaining cybersecurity comes from a recent Washington Post article (“This is why the government keeps getting hacked” by Jeffrey Neal) about the breach at the Office of Personnel...more

7/22/2015 - Cybersecurity Data Security Employment Policies Passwords Technology

You’ve Been Warned – Those Independent Contractors Are Probably Employees

On Wednesday, I did a very short “breaking news” post on the new Interpretation issued by Wage and Hour Administrator David Weil on when workers are “employees” versus “independent contractors” under the Fair Labor Standards...more

7/20/2015 - Administrative Interpretation Corporate Counsel DOL Employee Definition Independent Contractors Misclassification Multi-Factor Test Wage and Hour

Women Aren’t Lead Counsel As Often As Men – It’s Gotta Be Bias!

According to the study, based on information gained through the PACER federal court electronic filing system, 68 percent of all lawyers appearing in the 2013 civil cases were men, and 32 percent were women. But 76 percent of...more

7/20/2015 - Bias Gender Discrimination Jury Trial Trial Attorneys Trials Young Lawyers

BREAKING: DOL Issues Memo On Independent Contractors

Law360 reported this morning that the U.S. Department of Labor issued a memorandum addressing the “independent contractor versus employee” issue, taking the position that most workers are actually employees within the meaning...more

7/16/2015 - DOL FLSA Independent Contractors Misclassification

This Week In Employment Law, With A Lick And A Promise

It’s been a hectic week for me (I have a trial coming up), and so here are some links to employment law blog posts and workplace news items that I hope will entertain and edify....more

7/13/2015 - ADA Confederate Flag Facebook FMLA Free Speech Human Resources Professionals Obergefell v. Hodges Reasonable Accommodation Religious Discrimination Retaliation Same-Sex Marriage

EEOC’s Revised Pregnancy Guidance: Now, Just Barely More Flexible!

Last Thursday, the Equal Employment Opportunity Commission issued its amended guidance on pregnancy discrimination and accommodation in light of the U.S. Supreme Court decision in Young v. UPS, issued in March 2015. The...more

7/3/2015 - Corporate Counsel EEOC Employee Rights Employment Policies Guidance Update PDA Pregnancy Reasonable Accommodation SCOTUS Young v United Parcel Service

What Does SCOTUS Same-Sex Marriage Decision Mean For Employers?

Seriously, I don’t think Friday’s Supreme Court decision in Obergefell v. Hodges will be that big a deal for most employers. The Supreme Court already decided in 2013 that the federal definition of “spouse” included same-sex...more

7/1/2015 - DOL Due Process Employee Rights Equal Protection FMLA Fourteenth Amendment Marriage Marriage Equality Obergefell v. Hodges Same-Sex Marriage SCOTUS

Employers, You’ll Never Pooh-Pooh The GINA Again.

On Monday, a federal jury in Atlanta awarded two hourly warehouse workers $2.2 million in a lawsuit brought under the Genetic Information Nondiscrimination Act. The controversy started when Atlas Logistics Group Retail...more

6/26/2015 - Corporate Counsel Employer Liability Issues GINA Grocery Stores Trucking Industry Young Lawyers

A First Look at the Workplace Implications of Same-Sex Marriage Equality

We asked attorneys writing on JD Supra to share with us their initial thoughts on the implications of the U.S. Supreme Court's Obergefell decision in favor of same-sex marriage equaliy, especially with the regard to the...more

6/26/2015 - Corporate Counsel Discrimination DOMA First Glance Marriage Equality Obergefell v. Hodges Same-Sex Marriage SCOTUS Sexual Orientation Discrimination US v Windsor Young Lawyers

BREAKING: Same-Sex Marriage Is The Law Of The Land, SCOTUS Says

The decision in Obergefell v. Hodges, hot off the press, is 103 pages long, but here it is. Some instant analysis: *The due process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution compel...more

6/26/2015 - Due Process Equal Protection First Amendment Fourteenth Amendment Obergefell v. Hodges Same-Sex Marriage SCOTUS

Thanks a LOT, Mr. President!

As you know, I strongly disapprove of use of the “N” word in the workplace. I don’t think African-Americans should say it, and I really, really don’t think people who aren’t African-American should use it....more

6/26/2015 - Barack Obama Employment Policies Offensive Language Race Discrimination

Harassment “Must-Have” No. 5: No Retaliation!

It should be easy to avoid retaliation, right? Because retaliatory conduct is intentional – you can’t “accidentally” retaliate against someone. You can’t “negligently” seek payback....more

6/22/2015 - Best Management Practices Employer Liability Issues Harassment Human Resources Professionals Internal Investigations Retaliation Training

Harassment “Must-Have” no. 4: The Determination

It’s the moment of truth! (Dum-dum-DUM!) Two weeks ago, we talked about harassment “must-haves” 1 and 2: a good, plain-language policy, and training. Last week, we talked about “must-have” 3: the investigation....more

6/15/2015 - Employer Liability Issues Harassment Internal Investigations

EEOC V. Abercrombie’s Lesson For Employers – In 5 Minutes Or Your Money Back

In a nutshell, the Supreme Court decision in EEOC v. Abercrombie means this: if an employment decision is motivated by religion – even if the employer does not actually know the religious need of the individual – then the...more

6/9/2015 - Abercrombie & Fitch EEOC EEOC v Abercrombie Hiring & Firing Job Applicants Reasonable Accommodation Religious Discrimination SCOTUS Title VII

“Must-Haves” For Your Harassment Investigation

Last week, I posted about harassment “must-haves” for employers, and talked in detail about the first two: a good policy, and training. This week I’d like to talk about “must-have” no. 3 – a prompt, thorough, and fair...more

6/9/2015 - Employer Liability Issues Harassment Internal Investigations

Less Alarming Than It Sounds: Implications of the Religious Accommodation Decision in 'EEOC v. Abercrombie'

First Glance perspective by attorney Robin Shea of the Supreme Court's recent Religious Accommodation decision in EEOC v. Abercrombie. Spoiler alert: more alarming than it sounds....more

6/2/2015 - Corporate Counsel Discrimination EEOC EEOC v Abercrombie First Glance Hiring & Firing Popular Religious Accommodation Religious Discrimination SCOTUS Title VII

Five Harassment “Must Haves” For Employers

Maybe it’s just me, but workplace harassment issues seem to come in waves — I’ll go months, or even a year, without an issue, and then WHAM! everybody has a “situation,” or at least they need to get their preventive training...more

5/29/2015 - Anti-Harassment Policies Anti-Retaliation Provisions Corporate Counsel Employee Handbooks Harassment Internal Investigations Managers Supervisors Training Requirements Workplace Bullying

Probability, Manipulation, And Random Drug Testing

Many employers — particularly, those in the transportation industry — use third party vendors to do the random selections for federally mandated drug and alcohol tests. I think it’s a great idea, because it prevents employees...more

5/22/2015 - Discrimination Drug Testing Employment Policies Third-Party Service Provider

Female Lawyer Plays The “V” Card, Wins $500 Sanction

Have you ever heard of the word “virilism”? Neither had I. But apparently it’s a real thing: the appearance of male secondary sex characteristics in a female. (Males can have the condition, too, but it’s usually more serious...more

5/22/2015

Is This New Harassment Decision The End Of The World For Employers?

Are harassment and retaliation lawsuits all going to the jury now? Are employers doomed? Are the plaintiffs’ lawyers popping the champagne corks? Is the EEOC dancing for joy?...more

5/15/2015 - Corporate Counsel Defense Strategies EEOC Employer Liability Issues Harassment Retaliation

Can We Stop With The Age-Based Stereotypes?

A hot topic for the past few days, after an article on the subject appeared in Fortune, has been whether it’s discriminatory for an employer to specify in recruiting that it’s seeking to hire “digital natives.” A “digital...more

5/11/2015 - Age Discrimination Hiring & Firing Millennials Technology

Proposed Overtime Rule Has Been Sent To OMB

Secretary of Labor Thomas Perez announced today that the U.S. Department of Labor has submitted a proposed rule on the white-collar FLSA overtime exemptions to the federal Office of Management and Budget, which means that the...more

5/6/2015 - DOL Exempt-Employees FLSA OMB Proposed Regulation Secretary of Labor

EEOC Rolls Out “Digital Charge” Program For Private Employers

The EEOC began use of a new “Digital Charge” pilot program last Friday in the Charlotte, North Carolina, and San Francisco, California, field offices for employment discrimination charges filed against non-federal employers....more

5/5/2015 - Digital Charge Programs Discrimination EEOC

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