Labor & Employment Administrative Agency Civil Procedure

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Spring Forward: Constructive Discharge Clock Doesn’t Start Until Employee Gives “Definite Notice” of Intent to Resign

On May 23, 2016, the Supreme Court resolved a circuit split over the deadline for employees to pursue their administrative remedies in connection with constructive discharge claims under Title VII. Generally, employees must...more

Federal Court Allows the EEOC to Conduct Investigation on Employer’s Premises Without Employer Consent or a Warrant

Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment. A recent federal court decision, however, may lead to an...more

Second Circuit Applies Stricter Rules for a Plan Administrator’s Noncompliance with Benefit Claims Regulations

In Depth - On April 12, 2016, the US Court of Appeals for the Second Circuit in Halo v. Yale Health Plan, 2016 WL 1426291 (2d Cir. Apr. 12, 2016), addressed various issues that could arise during a plan administrator’s...more

Unworkable Employer Work Rules: The Board Once Again Makes Perfection the Enemy of the Good

The Board majority holds firm to its standard for evaluating employer work rules despite Member Miscimarra’s vigorous dissent advocating for a new, clearer standard that takes into account an employer’s legitimate business...more

Liar, Liar, Pants on Fire! Preventing the Application of the Section 20(a) Presumption with Surveillance

The recent decision of the U.S. Court of Appeals for the Fifth Circuit in Bis Salamis, Inc. v. Director, OWCP (Joseph Meeks), No. 15-60148 (March 17, 2016), highlights how the defense to a claim under the Longshore and Harbor...more

Is Your Workers Compensation Program Unlawful?

A popular workers compensation insurance program offered by Berkshire Hathaway subsidiaries Applied Underwriters Captive Risk Assurance Company (Applied Underwriters) and California Insurance Company may be in trouble. On...more

SOX Whistleblower Receives $250,000 Award Related to State Wage Act Complaints

The ARB recently concluded that a former program manager was entitled to recover more than $250,000 in back pay and benefits under Section 806 of SOX based on his discipline and constructive discharge. The ARB clarified that...more

OSHA Proposed Rule Attempts to Undo D.C. Circuit Recordkeeping Statute of Limitations Ruling

Earlier this year, we wrote about a very significant rulemaking to amend OSHA’s injury and illness recordkeeping regulations to require employers to proactively submit their injury logs and reports to OSHA on a regular and...more

Employee Manuals – Sticking to the Script: New Guidance from the NLRB

On April 7, 2016, a National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) ruled that five Dan Gilbert companies, including Quicken Loans Inc., Fathead LLC, In-House Realty LLC, One Reverse Mortgage LLC,...more

Judge Garland’s ERISA Jurisprudence Reflects His Methodical and Moderate Reputation

With President Obama’s recent nomination of Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit to the U.S. Supreme Court, we thought our loyal readers would be interested to learn a little about Judge...more

Social Media Policy Cannot Prevent Employee from Negative Responses to Customer Tweets

The National Labor Relations Board continues to interpret Section 7 of the NLRA to prevent employers from adopting social media policies that restrict employees’ ability to publically complain about their terms and conditions...more

Employee Benefits & Executive Compensation Advisory: The ACA: New Concerns for Employer Plan Sponsors Under the Fair Labor...

The Affordable Care Act (ACA) anti-retaliation provisions have been in effect for several years, but have so far largely gone unnoticed. Now that employees can get financial assistance through the Health Insurance...more

MMBA Factfinding Applies to All Negotiations Resulting in Impasse

Not Just Negotiations for a Comprehensive MOU - The factfinding procedures required by the Meyers Milias Brown Act apply to all negotiations which reach impasse, not just those arising from negotiations for a...more

Two Additional Lawsuits Filed Challenging the DOL’s Final Persuader Rule

In follow-up to our earlier blog post about the first lawsuit to challenge the U.S. Department of Labor’s Final Persuader Rule that was promulgated in late March, two additional lawsuits have been filed challenging the Final...more

#Concerted Activity in 140 Characters or Less

Employees have increasingly voiced concerns on social media regarding their employment, often including specific statements about their employers. As previously discussed on this blog, an employee’s Facebook post related to...more

OSHA Releases Final Dodd-Frank Whistleblower Regulations

OSHA recently released its final rule implementing the whistleblower provisions of the Consumer Financial Protection Act of 2010 (“CFPA”).  The following are the key features of the rule...more

Who is Merrick Garland and What Does His Nomination Mean for Labor and Employment Law?

A month after U.S. Supreme Court Justice Antonin Scalia’s death, President Obama has appointed Merrick B. Garland to fill the High Court vacancy. Judge Garland currently is Chief Judge for the U.S. Court of Appeals for the...more

ARB Rejects SOX Claim of Employee Who Threatened Co-Worker

On February 18, 2016, the ARB dismissed a former employee’s whistleblower retaliation claim under Section 806 of SOX, concluding that he failed to show that his protected activity contributed to the decision to terminate his...more

ERISA — 10th Circuit: What Happens When a “Procedural Irregularity” Occurs in an Appeal Denial?

You know that procedural irregularities in an appeal denial of a claim for ERISA-governed benefits can change the standard of review from arbitrary and capricious to de novo review. But not all the time. The claimant should...more

ERISA (5th Circuit): Are There Exceptions to the Exhaustion of Administrative Remedies Requirement

You already know that claimants with a denied claim must submit an appeal and exhaust administrative remedies before filing suit. But are phone calls sufficient to trigger the appeal process?...more

Federal ALJ Allows OSHA to Seek Enterprise-Wide Abatement of Hazards Discovered at One Location

OSHA inspections are usually site-specific, meaning that the agency’s authority to issue penalties and to seek abatement of workplace hazards applies to the workplace actually inspected. Last month, a federal Administrative...more

The Fair Labor Standards Act Statute of Limitations Limits Employer Liability: Except When It Doesn't

About a year ago, the United States Court of Appeals for the Fourth Circuit held in Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014), a decision that has received little attention, that an employer covered by the Fair Labor...more

Litigating Environmental Whistleblower Claims Under OSHA Procedures

The federal government is allocating more time and resources to whistleblower programs. Now, more than ever, companies need to take steps to minimize exposure to whistleblower claims. When a whistleblower case is filed, it...more

NLRB Again Says Employers Cannot Impose Blanket Ban on Employee Recording in Workplace

Like many employers, Whole Foods adopted a policy prohibiting employees from conducting unauthorized recording of conversations, phone calls or meetings, regardless of the recording technology used. Employers generally...more

Big News for the Home Health Industry: Federal Judge Vacates the DOL's Companionship Services Regulations on Minimum Wage and...

As 2014 wound to a close, the United States District Court for the District of Columbia issued a significant decision impacting third-party agencies that provide in-home care to the elderly and ailing. On December 22, 2014,...more

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