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Before You Fire That Political Extremist . . .

If you’re a private sector employer, you can generally fire an at-will employee for his or her political beliefs or expression. The First Amendment, as we discussed last week, does not limit you. Depending on where you are,...more

NC “Employee Classification” Law Warrants Caution But Doesn’t Change Substantive Law

On August 11, Gov. Roy Cooper signed into law the North Carolina Employee Fair Classification Act. The portion of the legislation that deals with worker classifications will take effect December 31....more

Q And A On The Recent Controversy

On the recent uproar involving a major, major employer and its recently-terminated employee: No. 1. Is it a good idea to provide an “open forum” to employees if there are certain topics that are off limits? No. If you want...more

Employer Loses Defense To EEOC Suit Because It Didn’t Preserve Records

Just a quick reminder to employers to PRESERVE THEIR RECORDS when litigation is not only pending but also threatened. "If you wait until the sheriff serves you with a summons and complaint, you may have waited too long....more

Employer Beware: Bad “Optics” Create Hostile Work Environment?

Yesterday, I posted about a disability discrimination case that the employer did not really screw up. Even so, a few less-than-optimal moves resulted in an adverse jury verdict that was upheld on appeal. In Chapter 2 of...more

Bummer. NLRB Chairman Miscimarra Is leaving In December

Bloomberg BNA reported last night that Philip Miscimarra, Chairman of the National Labor Relations Board and a voice of reason, will be leaving when his term expires on December 16 of this year. Chairman Miscimarra said...more

8/8/2017  /  NLRB , Trump Administration

Employer Beware: When “Good” Isn’t Good Enough (Disability Bias)

Two court decisions came out last week that ought to scare the heck out of employers. Both involved employers who seem to have been aware of their legal obligations and tried to comply. The employers lost their cases...more

You Decide: Why The DOJ Says Title VII Does NOT Prohibit Sexual Orientation Bias

Last week, I had a short post about the position taken by the U.S. Department of Justice in the Zarda v. Altitude Express “gay skydiver” case. The DOJ has directly opposed the Equal Employment Opportunity Commission, which...more

Kaplan Confirmed To NLRB – We Now Have An “R-D” Tie

The U.S. Senate yesterday confirmed Marvin Kaplan’s appointment to the National Labor Relations Board, which means that there is now an equal number of Republicans and Democrats on the Board. William Emanuel, a...more

President Trump nominates Iraq Veteran Daniel Gade To EEOC Commissioner spot

President Trump has nominated Daniel M. Gade to the last vacant slot on the Equal Employment Opportunity Commission. Dr. Gade, who has a Master’s and Ph.D. in Public Administration and Public Policy, is a veteran of the...more

Thinking Out Loud About Medical Marijuana And Reasonable Accommodation

(When I think out loud, beware.)- Ellen Kearns’ discussion of last week’s decision in Barbuto v. Advantage Sales and Marketing, in which the Massachusetts Supreme Judicial Court ruled that employers may have to accommodate...more

Trump V. Sessions: Are We Witnessing A “Constructive Discharge” In Real Time?

As anyone who’s been following the news is aware, President Trump has been publicly and repeatedly indicating his displeasure with Attorney General Jeff Sessions. We are a non-partisan blog, so I’m not going to get into who’s...more

Battle Of The Feds! DOJ, EEOC Lock Horns On Sexual Orientation Bias

Whoa. The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case. Are they ever. ...more

DOL Asks For Feedback On Salary Levels In Overtime Rule

The U.S. Department of Labor has issued its promised Request for Information on the salary levels in the Obama Administration’s overtime rule. The RFI was published in yesterday’s Federal Register. Comments are being accepted...more

EEOC Sues Over – Get This – “Spanish-Only” Policy

You’ve heard of “English-only” policies, but here is a new one. The Equal Employment Opportunity Commission filed suit last week against a Houston-area company for allegedly requiring applicants to be of Hispanic national...more

“Not My Employee, Not My Problem.” Oh, Yeah?

Employers, has this ever happened to you? A guy (we’ll call him “Ryan”) comes to work for you through a temporary agency. The agency issues the paychecks and generally acts as Ryan’s “HR” representative. Your company pays...more

NLRB Nominees Kaplan, Emanuel Advance To Senate Vote

Marvin Kaplan and William Emanuel, President Trump’s nominees to fill the two vacant seats on the National Labor Relations Board, cleared another hurdle Wednesday by making it out of the Senate Health, Education, Labor and...more

Hate Those EEOC Regs? Here’s Your Big Chance!

In February, President Trump issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which directs federal agencies to establish regulatory reform task forces to make recommendations about repealing,...more

For The ADEA’s 50th Birthday: An Age Discrimination Quiz

The Age Discrimination in Employment Act recently celebrated its 50th birthday (it doesn’t look a day over 49). This calls for an age discrimination quiz!...more

Senate Hearing On Labor And Employment Nominees Set For Today — But Will It Happen?

The Senate is scheduled to hold a “combined” confirmation hearing starting at 9:30 a.m. Eastern today on three Trump nominees for labor-and-employment-related positions: Marvin Kaplan and William Emanuel, both of whom have...more

Are You A Harassment “Daredevil”? Here Are 5 Behaviors That Put You At Risk.

Not every obnoxious workplace behavior is unlawful harassment. To violate federal law, the harassment has to be unwelcome, based on a “protected category” (for example, sex or race), and “severe or pervasive.” But most...more

Well, That’s Weird. Trump DOL Will Pursue Appeal Of Overtime Decision

The U.S. Department of Labor submitted its brief today in Nevada v. U.S. Department of Labor, the case involving the challenge to the Obama Administration’s overtime rule. Some very quick background: The overtime rule,...more

Trump Nominates Janet Dhillon To Head EEOC

Janet Dhillon, general counsel and corporate secretary for Burlington Stores, Inc., has been nominated by President Trump to fill a vacant seat on the Equal Employment Opportunity Commission and to become its Chair. If...more

Litigation Tactics Can Be FLSA Retaliation? Wow.

Can an outside attorney defending an employer in a lawsuit under the Fair Labor Standards Act be liable for retaliation against the plaintiff-employee based on litigation tactics? One court answered that question “yes” last...more

It’s SUMMER! Top 4 Ways Employers Can Get Burned

We officially entered the season of summer this week. What are the most common ways employers can get burned? I can think of four right off the bat. Sexist air conditioning. It seems like a long time since we’ve read...more

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