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Employment Law This Week: Discrimination Claims, Employee Wellness Notice, Persuader Rule, Pin Ban

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that...more

The Aftermath: Developments From The 2016 Session of The Connecticut General Assembly Affecting The Workplace

The 2016 session of the Connecticut General Assembly has just concluded, along with subsequent “special sessions.” Most prominently from an employment law standpoint, the General Assembly passed (and the Governor signed) legislation that: 1) prohibits most employers from inquiring via an initial employment application into a job applicant’s prior criminal history, 2) establishes a state managed retirement plan for private sector workers, 3) authorizes the use of direct deposit and payroll cards for payment of wages, 4) explicitly authorizes employers to pay wages biweekly, 5) revises the state’s FMLA to conform with the federal FMLA with respect to leave connected to a relative’s military service, 6) places restrictions on non-competition agreements involving physicians, and 7) establishes a monetary benefit for firefighters suffering from certain cancers.more

@Work: Your HR and Employment Law Update - June 2016

With the Ohio Senate’s passage of House Bill 523 on May 25, 2016, Ohio is poised to become the nation’s 25th state to legalize medicinal marijuana. Although the proposed state law provides direction for employers, a new OSHA rule affecting drug testing provides a confusing federal overlay for employers to navigate. Please see full Newsletter below for more information.more

Employment Law This Week: Casino Trainees’ Class Action, Updated FMLA Guide & Poster, OSHA Fine, Mandatory Flu Vaccines Challenged

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates. This week’s stories include ... (1) Casino May Have to Pay Trainees Our top story: Casino trainees could be entitled to minimum wage. The U.S. Court of Appeals for the Fourth Circuit recently revived a class action suit from a group of trainees at a casino in Maryland. Applicants who wanted to work the casino's new table games were expected to attend a 12-week “dealer school,” during which they went mostly unpaid. Several of the trainees sued, alleging that the practice violated the Fair Labor Standards Act. Though the district court dismissed the case, the Fourth Circuit ruled that the company could be found to be the primary beneficiary of the training and remanded the case for further fact-finding. Nathaniel Glasser, from Epstein Becker Green, goes into further detail. (2) DOL Updates FMLA Guide and Poster The Department of Labor (DOL) has released an updated employer's guide to the Family and Medical Leave Act (FMLA). The 76-page, seven-chapter guide is dedicated to increasing awareness of the details of the law in order to strengthen compliance. The DOL has also issued an updated FMLA notice poster that is easier for employees to read. (3) OSHA Fines Store After Fatal Shooting OSHA has fined a convenience store for the lack of safety precautions. Last year, an employee was fatally shot inside a convenience store in New Jersey. Although OSHA’s coverage of workplace violence is sometimes overlooked, the agency investigated this shooting and found that 20 violent incidents had occurred at the store in the last five years. The agency filed a $14,000 citation against the company for failing to put a comprehensive violence prevention program in place. While the business did have cameras, OSHA was looking for safety features, like bulletproof glass and panic buttons, which might have helped to save the employee's life. (4) EEOC Files Lawsuit Over Mandatory Flu Vaccines Mandatory flu vaccines could constitute religious discrimination. The Equal Employment Opportunity Commission (EEOC) is suing a hospital in Asheville, North Carolina, for a policy that requires employees to receive annual flu vaccinations. Employees can request a religious exemption but must do so before a deadline of September 1. When several employees were late in submitting their request, they were denied the exemption and subsequently fired. The EEOC found the deadline arbitrary and is arguing that a religious accommodation should have been made for the affected employees. (5) In-House Tip of the Week Coleen Cohen, HR Generalist for the Financial Times, shares some advice on developing a strong telecommuting policy. For more information and to subscribe, visit

Employment Law This Week: OSHA Fines, ACA’s Contraception Opt-Out, Illegal Firing, Off-the-Clock Security Screenings

Episode 5, Week of November 16, 2015 - We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new episode! This week's topics [] ... (1) OSHA Fines Rise OSHA fines are set to increase for the first time in 25 years. Under the new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015—an increase of as much as 82%. After this "catch up" adjustment, the fines will keep pace with inflation moving forward. We asked Valerie Butera from Epstein Becker Green how employers can boost their safety programs to avoid OSHA citations. Click here for more information. (2) Supreme Court to Review ACA’s Contraception Opt-Out The Affordable Care Act’s (ACA’s) birth control provisions are heading back to the U.S. Supreme Court. At issue is whether the ACA’s opt-out process violates the Religious Freedom Restoration Act. Under the opt-out, religious organizations do not have to pay for contraception, but other accommodations are made so that employees will still receive coverage. The high court will review a consolidation of seven cases to decide whether the opt-out “substantially burdens” religious freedom. Like last year’s landmark Hobby Lobby decision, this case addresses the extent to which corporations have the same rights as natural persons and how those rights affect a company’s legal obligations towards its employees. This is the latest case, but undoubtedly not the last one, on this topic. (3) NLRB Finds That Chipotle Illegally Fired Worker for Discussing Wages The National Labor Relations Board (NLRB) ruled that Chipotle illegally fired an employee for participating in minimum wage protests. The NLRB ruled that the firing by the chain was a violation of the National Labor Relations Act. Though the employee’s supervisor claimed he was fired for poor performance, the NLRB found that the firing was motivated by the employee’s participation in the protests and his discussion of pay with other employees. Other restaurants are facing similar charges from the NLRB arising from the "Show Me 15" protests. (4) Wages for Off-the-Clock Security Screenings Two federal class actions challenging off-the-clock security screenings reach different outcomes. Bath & Body Works recently agreed to settle a suit in California over unpaid overtime and off-the-clock security inspections. But a federal judge in the same state dismissed a similar class action against Apple in which retail workers claimed that they should be compensated for time spent having their bags checked. The judge concluded that the employees were not performing job duties and could avoid the screenings by not bringing a bag or cell phone to work. Click here for more on this trend. (5) In-House Counsel Tip of the Week Eugene Schlanger, a regulatory and compliance attorney, gives some advice on how to prepare for employment issues before they arise. Tune in each week for developments that may affect your business. Trouble viewing the video? Please contact and mention whether you were at home or working within a corporate network. We'd also love your suggestions for topics and guests!more

The Cost of Health Care Isn’t the Price of Health Care

It’s common to use the term “cost of health care” to mean the price of health care. But there is a difference—often a huge difference.more

Employees vs. Independent Contractors: The Consequences of Misclassification

The distinction between independent contractors and employees carries more burdens, consequences, and decisions than ever before. In addition to the tax consequences, there are health care compliance consequences, workers’ compensation consequences, and even intellectual property consequences. Understanding the consequences of misclassification is paramount to properly structure an employer’s workforce.more

California Legislation 2014

California Governor Jerry Brown has signed into law a number of bills that will impact the employer community. Healthy Workplaces, Healthy Families Act of 2014—Paid Sick Leave (AB 1522) - On September 10, 2014, Governor Brown signed a bill that provides workers with a minimum of three paid sick days per year.more

Ohio Supreme Court Rules On Applicability of Dual Intent Doctrine When Determining Eligibility For Workers’ Compensation Benefits

On October 21, 2014, the Supreme Court of Ohio in Friebel v. Visiting Nurse Assn. of Mid-Ohio addressed whether the doctrine of dual intent or dual purpose is applicable when determining eligibility for workers’ compensation benefits in Ohio. The Court reversed the Fifth District Court of Appeals and held that the dual intent doctrine is not recognizable when determining eligibility, and remanded the case to the trial court. more

Employers Should Not Just Be Bold, But Smart, When Dealing With Ebola

Tensions are high concerning the potential spread of the Ebola virus disease in the U.S., fueled by the confirmation of new infections, around-the-clock news reports on potential calamities and our natural, and seemingly universal, fear of the unknown.more

California Legislative Update: September 2014

In September 2014, California Governor Jerry Brown signed into law a number of bills that will impact the employer community. Healthy Workplaces, Healthy Families Act of 2014—Paid Sick Leave (AB 1522) - On September 10, 2014, Governor Brown signed a bill that provides workers with three paid sick days per year.more

Recent Changes to California Laws - the Healthcare Perspective

Workers’ Compensation Insurance for Professional Athletes - AB 1309; Labor Code §3600.5 - The efforts made by professional athletes seeking workers’ compensation benefits for injuries that they sustained on the playing field has resulted in a considerable amount of drama in the press. As a result, the California legislature has amended the state Workers’ Compensation Act to include coverage for some athletes. In-state athletes are covered.more

Illinois lawmakers considering change to workers’ compensation for paramedics

As emergency medical service providers, paramedics in Illinois face numerous hazards in the workplace on a daily basis. The Centers for Disease Control and Prevention reported that in 2011, the most recent year that statistics were available...more

Weekly Update from the NC State House - July 2014: The Senate was busy this week with the Rules committee meeting Tuesday, Wednesday and Thursday mornings to push last minute legislative priorities through the chamber as lawmakers continue to creep towards adjournment...

This Week - The Senate was busy this week with the Rules committee meeting Tuesday, Wednesday and Thursday mornings to push last minute legislative priorities through the chamber as lawmakers continue to creep towards adjournment. Budget negotiations also continued to press onward, slowly but surely as the two chambers of the General Assembly inched ever closer to a final spending plan.more

Executive Briefing

In its decision on Templemire v. W&M Welding, Inc., the Missouri Supreme Court imposed a minimalist “contributing factor” causation standard on workers’ compensation retaliation claims. The decision overrules two precedents, and will likely result in an increase in claims under the work comp law. more

SuperVision Today - February 2014

Notes from the Chair and Executive Editor - The year 2014 marks Spilman Thomas & Battle's 150th anniversary. While we pause to reflect on our first 150 years, we are also looking forward to how we will create our next 150 years. In keeping with that spirit, we have learned that the only way to control what comes Next is to create it. Our purpose is to help you manage your human resources to achieve your goals in the next year and the next coming years. We are excited to announce 2014 dates for four seminar locations: Pittsburgh, Pa. - May 5 Charleston, W.Va. - June 27 Roanoke, Va. - September 18 Winston-Salem, N.C. - September 19 We are busy crafting the agenda for these SuperVision seminars and what we hope will be an exciting list of speakers. We will share that information as soon as it is available. In the meantime, please take a moment to "save the date" for the seminar most convenient for you. The first quarter of the year generally brings statutory changes at the state law level as the legislatures for the states in our region convene. One of those proposed changes in the state of West Virginia could eviscerate the workers' compensation reforms that began in the state in 2003. Our workers' compensation team of Karen Weingart and Dill Battle (Charleston) explore the proposed changes in an article in this edition. We'll keep monitoring bills in all of our states and keep you apprised of any major developments. In addition, we have an article from Pete Rich in our Pittsburgh office examining the repercussions of a recent decision on wage and hour law from the Supreme Court of the United States. Lindsay Griffin Smith in Charleston takes a look at the Obama administration's most recent tweaks (and delays) to the Affordable Care Act. Larissa Dean, Morgantown, examines the latest developments in immigration policy. Gordon Mowen in Charleston offers a warning to employers on handling disability issues in light of the Americans with Disabilities Amendments Act. We hope you enjoy this edition and wish you the best in 2014. Please see full newsletter below for more information.more

Health Alert (Australia) - 20 January 2014

In This Issue: Judgments, Legislation, and Reports. - Excerpt from Judgments: Commonwealth - 15 January 2014 - Short v Ambulance Victoria [2014] FCA 3 - The applicant's employment as a paramedic with Ambulance Victoria (AV) was terminated in July 2011. The applicant contended that in terminating his employment, AV contravened the Fair Work Act 2009 (Cth) by taking adverse action against him because he "vigorously" exercised his workplace rights. The applicant also submitted AV took adverse action against him by refusing to allow him to perform higher duties, issuing a formal warning, and standing him down. He made claims of discrimination on the basis of his alleged mental disability, and breach of the implied term of mutual trust and confidence in his contract of employment. The Federal Court determined that no aspects of the applicant's claim was made out, and dismissed the application. In issuing the formal warning, the Court found that while this amounted to "adverse action," the issue was whether the complaints made by the applicant prior to the warning was an operative factor. The Court held it was not: the formal warning related to the conduct of the applicant in 2010, and for no other reason. Further, the Court rejected the applicant's contention that AV breached the implied term of trust and confidence, as the warning was issued with reasonable and proper cause. In relation to the applicant's termination, the Court rejected the submission that his employment was terminated partly because of his persistence in exercising his workplace rights. The Court found the reason the applicant's employment was terminated was because of his "unprovoked and unreasonable personal attack" on his Team Manager... Please see full alert below for more information.more

Appellate Court Notes - Week of December 23

AC34963 - Compassionate Care, Inc. v. Travelers Indemnity Co. - The plaintiff was in the business of maintaining a list of nurses it referred out, as needed, to hospitals and nursing homes. It did background checks on them and had them sign a contract that they would not take jobs directly with their “clients," but the nurses were free to turn down any assignment, and could work elsewhere as they chose. The plaintiff billed the clients for the time of the nurse and extracted their fee and then remitted the balance to the nurse without any withholdings. more

Labor & Employment E-Note - October 10, 2013

In This Issue: - High Court Takes on Number of Workplace Dispute Cases - Government Shutdown Creates Delays at Labor Department, NLRB - E-Verify Suspension Leaves Employers Concerned Over Hiring - Judge Again Rules EEOC Out of Bounds in Exercising Its Authority - CFPB Warns Employers Against Requiring Payroll Debit Card Use - Transgender Employees Score Victory With Bias Settlement - U.S. Rejects Labor Union Pleas for ACA Dispensation - Employers Likely to Switch Workers from COBRA to New Marketplaces - Companies Boost Workplace Safety as Workers' Comp Rates Climb - Excerpt from High Court Takes on Number of Workplace Dispute Cases: Workplace disputes pepper the docket of cases the U.S. Supreme Court will take upduring their new nine-month term. During the term that begins October 7, the nine-member court, led by Republican-appointed Chief Justice John Roberts, also willconsider President Barack Obama's "recess appointments" to the National LaborRelations Board and take up the issue of whether workers at a steel plant should getpaid for the time it takes to change into safety gear. Please see full E-Note below for more information. more

California Legislative Committees Considering Insurance Bills

Numerous insurance-related bills have been introduced in the California Legislature this year. Legislative committees are now conducting hearings on the various measures. This year’s regular legislative session will end on September 13.more

Another Health Insurance/Disability Insurance Coverage Issue

I recently blogged about an employer who continued health insurance coverage for an employee on short term disability in contravention of the health plan document. The employer lost its stop-loss coverage for health claims incurred by the disabled employee because the health plan document did not specifically allow for continued coverage during disability. Today’s blog post concerns another scenario involving disability and health insurance but with a different twist. Today’s case involves an employee who became unable to work in 2004 as a result of knee problems. He applied for long term disability coverage and was denied, but ultimately sued the LTD carrier and recovered benefits. That lawsuit was settled in 2008. The employee also had a worker’s compensation claim that was being evaluated in 2004 and 2005. more

Southeastern Legislative Updates - August 2012

In This Issue: - Alabama Employment-Related Legislation - Mississippi Employment-Related Legislation - North Carolina Employment-Related Legislation - Tennessee Employment-Related Legislation - Washington, D.C. Employment-Related Legislation - Excerpt from Washington, D.C. Employment-Related Legislation: Discrimination and Retaliation Protections for the Unemployed: Employers in the District of Columbia must comply with a number of local laws regarding employees. These range from the D.C. Human Rights Act, which largely mirrors Title VII and similar federal laws, but specifically covers sexual orientation and political affiliation; to the D.C. Paid Sick Leave Act (DC Code § 32-131.02), requiring paid sick leave for employees based on the employer’s size; and the D.C. Family and Medical Leave Act (D.C. Code § 32 509), providing up to 16 weeks of unpaid leave in a 24-month period. Please see full update below for more information.more

The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians

This study examines the impact of State legislation that caps damage awards in malpractice cases on decisions of physicians about where to practice medicine. Twenty-four States now have laws that limit damage payments in malpractice cases.Most of these laws limit the amounts paid for non economic damages (e.g., pain and suffering) but a few limit both economic (e.g., medical expenses and lost wages) and non-economic damages. There is currently a national debate on the desirability of extending caps on malpractice damage awards to all States. Supporters of legislation to cap damages in malpractice cases maintain that it reduces malpractice premiums and helps insure an adequate supply of physicians. They also assert that escalating, multi-million-dollar jury awards are driving malpractice premium increases and that capping damage awards for pain and suffering helps restrain the rate of increase. more

SEIU WEST, Locals 333 and 299 and Laura Marchessault and Extendicare (Canada) Ltd.

Arbitration Award

Award concerning the interpretation of collective agreement clause providing up to one year of top-up to 100% of salary of Worker's Compensation benefits ought to be limited to one calendar year, or one year of total benefits. Grievance allowed. Because the language did not restrict the benefit to a calendar year;because the employer owes a deference to employees injured at work;because it is inherently unfair to make the test for a negotiated benefit so stringent as to deny the benefit to one but provide it to another; and because workplace injuries cannot be neatly compartmentalized when it comes to rehabilitation and healing of individuals, the clause was interpreted as providing the top-up benefit for a year of benefits, not just a calendar year. more

If I Suggest A Referral Doctor’s Name To My Current Doctor Does That Break The Chain Of Referral?

Under the Illinois Worker’s Compensation Act, if there is no “Preferred Provider Program” in place with your employer, then you are entitled to two choices of doctor. What this really means is that you are entitled to have two “chains” of doctors. As long as there is a referral from doctor to the next you stay within that chain. If you go outside these two choices then the Employer is no longer liable for your medical care even if it is related to the work injury. So what happens in the instance when you know what doctor you want to see on referral and you suggest that name to your current treating doctor for his or her referral? Does that mean it is not a referral anymore but another choice under the Act? The simple answer to that question is no. As long as there is a referral to see the other doctor, then it will not count as another choice. A recent case that was affirmed by the Appellate Court of Illinois expressed this idea that the law does not reference where the name of the referral doctor came from, the law simply requires that the treating doctor make the referral to that doctor. Please see full article below for more information. more

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