Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Being on Call in California Does Not Impede on Rest Breaks

Augustus v. ABM Security Services, Inc., No. B243788 (filed December 31, 2014, pub. ord. January 29, 2015)): In its recently published decision, the California Court of Appeal held that on-call rest breaks are permissible. In a…more

Appeals, On-Call Employees, Rest and Meal Break, Restaurant Industry, Security Guards

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Yule Time Tips, Part II: Knowing the Difference Between Religious Assumptions and Religious Accommodations

Picture this scenario. You are a busy manager of a retail organization. You assume that a sales employee is deeply religious because she wears religious symbols around her neck, talks about her pastor and church services…more

Employer Liability Issues, Freedom of Religion, Reasonable Accommodation, Religious Discrimination, Retailers

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Worker Failed to Show Pretext Following Contract Nonrenewal

The district court properly dismissed a former employee’s retaliation claim under the Americans with Disabilities Act (ADA) because she failed to prove that the employer’s performance-based reasons for her termination were a…more

ADA, Adverse Employment Action, Disability Discrimination, Dismissals

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Recent Illinois Federal Court Rulings Cloud Fifield’s Bright-Line Test

Two recent rulings in the Northern District of Illinois, Eastern Division and the Central District of Illinois, Peoria Division, have further blurred the “bright line” two-year consideration rule established by the Illinois…more

Appeals, Consideration, Employer Liability Issues, Restrictive Covenants

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New Year In New York State Means A New Minimum Wage

Effective December 31, 2013, the minimum wage in New York State will increase from $7.25 per hour to $8.00 per hour. The overtime rate of pay for hourly, non-tipped employees earning the minimum wage will increase to $12.00 per…more

Exempt-Employees, Hospitality Industry, Minimum Wage, Non-Exempt Employees, Posting Requirements

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Buyer Beware

Recently, the Ohio Supreme Court issued a decision that highlighted the fact that companies cannot assume that the forms and agreements of a prior company will provide the same protections for a successor company. In Acordia of…more

Assignments, Non-Compete Agreements

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A Single "Hitler" Comment Is Insufficient for a Title VII Retaliation Claim in the Fifth Circuit

The Fifth Circuit Court of Appeals recently affirmed a judgment against a City of Houston employee who claimed that he was demoted for reporting another employee’s racially offensive comment made during a workplace meeting…more

Adverse Employment Action, Appeals, EEOC, Municipalities, Offensive Language

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It’s Time to Post the OSHA 300A Annual Summary of Illnesses and Injuries

The Occupational Safety and Health Administration’s (OSHA) Form 300A, which lists a summary of the total number of job-related injuries and illnesses that occurred during 2014 at each workplace, must be posted between February 1…more

Employer Mandates, OSHA, Popular, Posting Requirements

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Who Got It Right?

Gallaudet University Chief Diversity Officer Angela McCaskill’s job was to promote a diverse and inclusive university community. Not only was she the institution’s first chief diversity officer, she was the first black, deaf…more

Adverse Employment Action, Colleges, Diversity, Employer Liability Issues, Same-Sex Marriage

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FY 2016 H-1B Cap Lottery Selection Completed, Premium Processing Timeline Begins April 27, 2015

On April 14, 2015, the U.S. Citizenship and Immigration Services (USCIS) announced that on April 27, 2015, it will begin reviewing cases filed with a request for premium processing. USCIS previously confirmed completion of the…more

H-1B, Lottery, USCIS, Visa Caps

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OSHA’s New Reporting Rules Are in Effect—What Will OSHA Do With the Data?

On January 1, 2015, the Occupational Safety and Health Administration’s (OSHA) revised regulation for reporting work-related injuries went into effect. Employers are now required to report fatalities as well as the following…more

Corporate Counsel, Employer Mandates, OSHA, Recordkeeping Requirements, Reporting Requirements

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Ebola and the Evolution of Personal Protective Equipment Recommendations

The use of Personal Protective Equipment (PPE) is evolving in ways that could not have been foreseen, as a collective brain trust of medical experts and front line workers push for modifications of PPE guidelines to wall off any…more

Ebola, Protective Gear

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The Private Sector’s Role in the New Face of Homeland Security

The Obama administration recently announced the creation of the Cyber Threat Intelligence Integration Center (CTIIC), a new governmental agency created to prevent cyber threats by analyzing and integrating digital intelligence…more

CTIIC, Cyber Threats, Cybersecurity, Cybersecurity Framework, Data Breach

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Indiana Supreme Court Upholds Right–to-Work Law

The debate over the constitutionality of Indiana’s right-to-work law may finally be over. In Zoeller v Sweeney (No. 45S00-1309-PL-596, November 6, 2014), the Indiana Supreme Court reversed a lower court ruling that had held…more

Employer Liability Issues, Hiring & Firing, Right to Work, Union Membership, Unions

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An Employer’s Attention to Time Record Detail May Thwart Collective Action Claims

Collective action claims under the Fair Labor Standards Act (FLSA) remain the most popular filing in federal courts, due in large part to the fairly lenient standard applied by courts to determine whether the claims should be…more

Class Action, Class Certification, FLSA

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Broward County Becomes The Second County In Florida To Adopt Wage Protection Ordinance

On October 23, 2012, Broward County became the second county in Florida to adopt a controversial wage protection ordinance. In a seven-to-two vote, with Commissioners Stacy Ritter and Chip LaMarca voting against the ordinance,…more

Wage and Hour, Wage Theft Prevention Act, Wages

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Federal Judge Approves Contractual Limitation On Time To Bring Employment Claims Under Oregon Law

A federal court in Oregon recently ruled that employment agreements may impose a reasonable limitation on the time period in which an employee may bring statutory and common law claims against his or her employer, even when that…more

Employee Benefits, Employee Rights, Employer Liability Issues, Employment Contract, Statute of Limitations

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IRS Traded in Your Chevy for a “Cadillac (ac-ac-ac-ac-ac) Tax”: Agency Issues First Guidance on the Implementation Code Section 4980I

On February 23, 2015, the Internal Revenue Service (IRS) issued the first piece of guidance that discusses the excise tax, better known as the “Cadillac Tax,” imposed by Section 4980I of the Internal Revenue Code of 1986, as…more

Affordable Care Act, Cadillac Tax, COBRA, Employer Group Health Plans, Excise Tax

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What's the One Thing Missing from Most Employee Handbooks?

In your experience, what's the one thing most employers overlook when putting together an employee handbook? The answer to that question depends on whom you ask - and, for a legal perspective, we put it to leading employment…more

Confidentiality, Disability, Employee Handbooks, FMLA, Hiring & Firing

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Government, Businesses Prioritize Cybersecurity Spending

If spending is a good indicator of shifting priorities for both business and government, then cybersecurity is quickly becoming priority number one. Last week, the White House announced a proposed 10 percent increase in…more

Cybersecurity, Federal Budget

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Fifth Circuit Declines to Clarify When an Employment Action is “Adverse” Enough to Support a Discrimination Claim

When presented with an employment discrimination claim, one of the early questions any agency or court must answer is whether the claimant has suffered an “adverse employment action.” Simply stated, even if a discriminatory…more

Adverse Employment Action, Discrimination, Employer Liability Issues, Racial Discrimination, Title VII

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Oil Field Employers Post-McMaster: Still Searching for Clarity on the TCA’s Impact on the Motor Carrier Act Exemption

In McMaster v. Eastern Armored Services, Inc., No. 14-1010 (March 11, 2015), the Third Circuit Court of Appeals issued one of the first federal appellate court opinions discussing the SAFETEA-LU Technical Corrections Act of…more

Drivers, Exempt-Employees, FLSA, Motor Carrier Act, Oil & Gas

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Ohio Employers Have to Give Employees Time off to Vote, But Whether They Get Paid—Depends

It’s election season again, and that means that Ohioans will once again take to the polls. But, as an Ohio employer, do you need to allow your employees to take time off from work to vote? Yes…more

Voting Leave

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The Employment Law Authority - January/February 2014

In This Issue: - FAMILY TRIP HELD PROTECTED BY FMLA - Court Finds Worker Continued To Care For Her Ill Mother - WELCOME TO FABULOUS LAS VEGAS! Workplace Strategies 2014 Heading Toward A Sellout - Wage & Hour. State…more

Canning v NLRB, Employee Rights, FMLA, Human Resources Professionals, NLRB

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Yule Time Tips, Part I: Gifts That Keep on Giving—Holiday Gifts for Colleagues

As the end of the year and the holidays draw near, many of us will express our gratitude to friends and family by exchanging gifts. As we are making our holiday gift lists, we may also find ourselves considering gifts for our…more

Employment Policies, Holiday Gifts, Holidays

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Texas Supreme Court Establishes That an At-Will Employee Does Not Have a Viable Fraud Claim Based on Continued Employment

The Texas Supreme Court recently issued a much-anticipated opinion regarding fraud claims in the employment at will context. In Sawyer v. E.I. du Pont de Nemours & Co., 430 S.W.3d 396 (Tex. 2014), the Fifth Circuit Court of…more

At-Will Employment, Fraud, Hiring & Firing, Subsidiaries

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The Interactive Process Dance, Part Two: What Happens When the Music Stops?

Part one of this two-part series covered the details of the interactive process in California and discussed a scenario in which the employee fails to respond to the employer’s attempts to communicate on an accommodation to his…more

Disability, Employer Liability Issues, Interactive Process, Reasonable Accommodation

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Implied Rights in Whistleblower Policies: What DC’s Latest Ruling Means for Employers

On March 18, 2015, the U.S. District Court for the District of Columbia ruled on a motion to dismiss in a case that will have potentially serious consequences for D.C. employers that include written whistleblower and other…more

Adverse Employment Action, Anti-Retaliation Provisions, Employee Handbooks, Employer Liability Issues, Employment Policies

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Revisiting Rochow: The Sixth Circuit Rejects Earlier $3.8 Million Equitable Award in Recent En Banc Decision

Just over a year ago, a panel decision by the Sixth Circuit Court of Appeals in Rochow v. Life Insurance Company of North America, 737 F.3d 415 made big news when the court upheld the district court’s award of $3.8 million in…more

Appeals, Denial of Benefits, Disgorgement, En Banc Review, Equitable Relief

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IRS Traded in Your Chevy for a “Cadillac (ac-ac-ac-ac-ac) Tax”: Agency Issues First Guidance on the Implementation Code Section 4980I

On February 23, 2015, the Internal Revenue Service (IRS) issued the first piece of guidance that discusses the excise tax, better known as the “Cadillac Tax,” imposed by Section 4980I of the Internal Revenue Code of 1986, as…more

Affordable Care Act, Cadillac Tax, COBRA, Employer Group Health Plans, Excise Tax

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Mandatory Retirement Plans in Illinois

Is Illinois the precursor to mandatory retirement savings programs across the country the way that Massachusetts was for mandatory health care? Illinois has become the first state to require that private-sector employers offer…more

Benefit Plan Sponsors, Employee Benefits, Employer Mandates, Retirement Plan

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Medical Cannabis Implications for Employers in Minnesota

On May 29, 2014, Minnesota signed into law Minnesota’s medical cannabis bill (SF No. 2470), which passed the House 89-to-40 and the Senate 46-to-16. The law establishes a registry program for Minnesota residents to legally use…more

Marijuana, Medical Marijuana

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The Federal Minimum Wage for Tipped Employees—Is a Raise in Store?

President Obama has made increasing the federal minimum wage a priority for the administration due in no small part to sustained union efforts over the past few years—including “worker center” protests and campaigns aimed at the…more

Fast-Food Industry, Minimum Wage, Obama Administration, Resorts & Restaurants, Restaurant Industry

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Employers Obtain Relief From Oppressive and Risky Michigan Wage Garnishments

A wage garnishment is a court order that assists plaintiffs with the collection of judgments. Such an order requires an entity to withhold money (i.e., wages) owed to a judgment debtor and divert it to a judgment creditor in…more

Employer Liability Issues, Governor Snyder, Judgment Creditors, Judgment Debtors, New Legislation

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Impact of Supreme Court’s Recent Actions on Employee Benefits

Did the Supreme Court legalize same-sex marriage? On October 6, 2014, the Supreme Court of the United States denied review of seven petitions challenging federal court of appeal rulings in the Fourth, Seventh, and Tenth…more

401k, Beneficiaries, Defined Benefit Plans, DOL, Employee Benefits

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CBP Designates Preferred Ports of Entry for First-Time Canadian TN and L-1 Applicants

U.S. Customs and Border Protection (CBP) is the agency charged with overseeing and facilitating international travel and trade across the borders of the United States. The CBP’s mandate includes responsibility over determining…more

Canada, Customs and Border Protection, International Travel, Ports

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Massachusetts Voters Approve Paid Sick Leave Measure

On November 4, 2014, Massachusetts voters approved by a decisive margin (approximately 60 percent in favor) a new measure requiring employers to provide sick leave to all employees (with certain limited exceptions regarding…more

Best Management Practices, Employer Liability Issues, Paid Leave, Sick Leave, Wage and Hour

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New Fiduciary Regulations Require Retirement Investment Advisers to Act in Clients’ Best Interests

On April 14, 2015, the U.S. Department of Labor (DOL) issued new proposed regulations that changed the definition of “fiduciary investment advice” as currently found in DOL Regulation 2510.3-21(c). These proposed rules also…more

Benefit Plan Sponsors, DOL, ERISA, ESOP, Fiduciary Standard

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Alabama’s New “Guns In The Parking Lot” Law Takes Effect On August 1, 2013

On August 1, 2013, Alabama laws regarding firearms will change to permit employees to bring guns to the parking lots of their workplaces, if certain conditions are met…more

Adverse Employment Action, Concealed Carry Permit, Firearms, Gun Laws, Guns-in-Trunks Legislation

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Independent Contractor or Employee: How Some Countries Differ

In this series of blog posts, we have examined the use of independent-contractor relationships by multinational organizations. In our last three posts, we identified issues for global entities that are considering using…more

Classification, Full-Time Employees, Independent Contractors, International Labor Laws

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The Fifth Circuit Giveth and Then Taketh Away: Another Perspective on Fluctuating Workweeks in Overtime Cases

In the course of two months, two separate Fifth Circuit panels have issued decisions that call into question the application of the fluctuating workweek (FWW) method in suits for unpaid overtime based on misclassification. In…more

Employee Rights, Fluctuating Workweek, Unpaid Overtime, Wage and Hour, Wages

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City of Columbia Is First in Missouri to Approve “Ban the Box” Legislation

In keeping with the “ban the box” legislative trend, the Columbia City Council unanimously passed a “ban the box” ordinance on December 1, 2014. The ordinance, which went into effect immediately, prohibits public and private…more

Ban the Box, Criminal Background Checks, Hiring & Firing, Job Applicants, Job Offers

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The Employment Law Authority - March/April 2015 #2

In This Issue: - Supreme Court Revives Pregnant UPS Worker's Suit - Spouses of H-1B Visa Holders Applying for Residency Eligible for Work Permits - Turning Metrics Into Money: An Interview With Solange Charas,…more

Age Discrimination, Discrimination, H-1B, Pregnancy Discrimination, SCOTUS

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Misclassification Initiatives Spread As Florida Signs Formal Pact with DOL

On January 13, 2015, the U.S. Department of Labor’s (DOL) Wage and Hour Division and the Florida Department of Revenue’s General Tax Administration (FDOR) entered into a memorandum of understanding (MOU) in which they agreed to…more

Department of Revenue, DOL, Employee Definition, Employer Liability Issues, Enforcement

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New Jersey Supreme Court To Revisit Employer Liability For Sexual Harassment By Supervisors

On November 6, 2013, the New Jersey Supreme Court granted certification in Aguas v. State of New Jersey, 2013 WL 1136115 (App. Div. Mar. 20, 2013), a pro-employer ruling on the issue of employer liability for sexual harassment…more

Anti-Harassment Policies, Department of Corrections, Employer Liability Issues, Sexual Harassment, Supervision

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Employee Not Entitled To Compensation For Time Spent Commuting To And From Job Sites And Home In Company Vehicle While Carrying Company Tools

In a recent decision, the Connecticut Supreme Court found that a plumbing foreman was not entitled to compensation for the time he spent commuting to and from job sites and his home at the beginning and end of his workday, even…more

Commuting, Company Cars, Employment Policies, FLSA, Wage and Hour

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Will the Star Quarterback Be Sacked by the Taxman?

On March 26, 2014, a regional director of the National Labor Relations Board (NLRB) decided scholarship football players at Northwestern University are employees because they “perform services for the benefit of the employer for…more

Athletes, College Athletes, Employee Definition, Federal Grants, Fringe Benefits

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Loose Lips Do Not Always Sink Ships—Seventh Circuit Rejects EEOC’s View on ADA Medical Records Rule

In EEOC v. Thrivent Financial for Lutherans (issued on November 20, 2012), the Seventh Circuit Court of Appeals, which is the federal appellate court covering Illinois, Indiana, and Wisconsin, ruled that a company did not…more

ADA, Disability, Discrimination, EEOC, Medical Records

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The Arbitration Obligations Imposed by the Fair Pay and Safe Workplaces Executive Order

As we discussed recently in our blog post, “President Obama Issues Two Executive Orders in 10-Day Period,” last week President Obama issued the Fair Pay and Safe Workplaces Executive Order. Under this order, federal contractors…more

American Express v Italian Colors Restaurant, Barack Obama, D.R. Horton v NLRB, Disclosure Requirements, Executive Orders

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Single Act of Disobedience Does Not Disqualify Employee From Unemployment Benefits, California High Court Rules

On July 3, 2014, the California Supreme Court decided whether a single act of disobedience by an employee constitutes misconduct within the meaning of section 1256 of California’s Unemployment Insurance Code, thereby…more

Employee Benefits, Unemployment Benefits, Unemployment Insurance

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AAO Decision Clarifies Requirement to File Amended H-1B Petitions for Worksite Changes

On April 9, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision concerning an employer’s obligation to file an amended H-1B petition in certain scenarios involving a change in worksite. The…more

Administrative Appeal Office, Employee Relocations, H-1B, LCA, Relocation

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MSHA Tackles Rising Metal/Nonmetal Fatalities

Only two months into 2015 and it has already been a busy year for the Mine Safety and Health Administration (MSHA). Last year, MSHA launched “Voice in the Workplace” as an initiative to prompt more involvement by miners in mine…more

Mining, MSHA, Workplace Safety

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King v. Burwell: What to Expect From the Supreme Court Argument

On Wednesday, March 4, 2015, the Supreme Court of the United States will hear argument in King v. Burwell, a case involving premium tax credits under the Affordable Care Act (ACA). Among its many provisions, the ACA includes one…more

Affordable Care Act, Chevron Deference, Health Insurance, Health Insurance Exchanges, Healthcare.gov

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New York Appellate Division Permits Worker to Establish Membership in Protected Class Based on Association with Another

Chiara v. Town of New Castle, (N.Y. App. Div., 2d Dep’t Jan. 14, 2015): A recent decision by the New York Appellate Division, Second Department, held that a plaintiff claiming religious discrimination under the New York State…more

Corporate Counsel, Employer Liability Issues, Municipalities, NYSHRL, Protected Class

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Arizona Court Of Appeals Decision Highlights Employer’s Burden Of Proving Disqualification From Unemployment Benefits

The Arizona Court of Appeals recently issued an opinion overturning the Unemployment Insurance Appeals Board’s denial of unemployment benefits to an employee who was terminated for excessive tardiness…more

Burden of Proof, Disqualification, Hiring & Firing, Unemployment Benefits, Willful Misconduct

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Supreme Court Weighs In On FLSA Class Action Issues

On April 16, 2013, the U.S. Supreme Court ruled in Genesis Healthcare Corp. et al. v. Symczyk that a collective action brought by a worker under the Fair Labor Standards Act (FLSA) was properly dismissed because the worker’s…more

Collective Actions, Dismissals, FLSA, Genesis HealthCare, Genesis Healthcare Corp. v. Symczyk

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DHS Funding Hangs In Balance While Congress Squares Off Over Executive Action on Immigration

Congressional standoff over immigration plays out through debate on DHS funding bill - A chess match continues to be fought in Congress over the fate of President Obama’s executive action on immigration. The standoff is…more

Barack Obama, DACA, DAPA, DHS, Executive Orders

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Getting with the (Wellness) Program: EEOC Proposes New ADA Regulations for Wellness Programs

For some time, employers have faced uncertainty about the status of their wellness programs under the Americans with Disabilities Act (ADA). While the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the…more

ADA, Affordable Care Act, EEOC, Health Insurance, HIPAA

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First Circuit Allows Retaliation Claim to Proceed Absent Direct Evidence of Decision Makers’ Retaliatory Animus

The First Circuit Court of Appeals recently took an expansive view of the type of evidence that is sufficient to raise a genuine issue of material fact to defeat an employer’s motion for summary judgment in a wage and hour case…more

Employer Liability Issues, Retaliation, Summary Judgment, Wage and Hour, Wages

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Wisconsin is Really Open for Business: Governor Signs New Right-to-Work Law

Wisconsin Governor Scott Walker’s motto is that Wisconsin is “open for business,” and he means it. On March 9, 2015, Governor Walker signed into law Senate Bill 44, which made Wisconsin the 25th right-to-work state in the…more

CBAs, New Legislation, Right to Work, Scott Walker, Unions

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Same-Sex Spouses to be Covered by FMLA as of March 27, 2015

On February 25, 2015, the U.S. Department of Labor (DOL) finalized a new rule (which was published in the Federal Register) expanding protections under the Family and Medical Leave Act (FMLA) for same-sex married…more

DOL, Employer Mandates, Final Rules, FMLA, Same-Sex Marriage

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Fifth Circuit Reverses Summary Judgment in Favor of Franchisor Not Named in Charge of Discrimination

Names play an important role for an employee who, in filing a charge of discrimination, must satisfy Title VII’s naming requirement. This is because an employee who fails to properly name defendants in a charge of discrimination…more

Discrimination, EEOC, Employer Liability Issues, Franchisors, Reversal

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What Does 'Noel Canning' Mean for the NLRB's Previously Decided Cases?

A comprehensive summary of the most significant previously-issued NLRB decisions up for reconsideration now that the U.S. Supreme Court has declared President Obama's recess NLRB appointments unconstitutional…more

Canning v NLRB, Costco, Hispanics United of Buffalo, Karl Knauz Motors, Marriott

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NLRB’s New “Ambush Election" Rules Go Into Effect: Is Your Organization Ready?

On April 14, 2015, after a four-year battle, the National Labor Relations Board’s (NLRB) final “ambush election” rules, which will dramatically shorten the time between requests for a vote and a union election, go into effect…more

Ambush Election Rules, NLRB

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Tread Carefully When Implementing a Reduction in Force

With recent price drops in the oil and gas industry it is likely that reductions in force (RIFs) are looming on the horizon. But employers need to tread carefully when implementing any RIF, as it can raise thorny issues under…more

Best Management Practices, Disparate Impact, Employer Liability Issues, Involuntary Reduction in Force, Retaliation

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Two-Year Preapproved Defined Contribution Plan Window is Still Open

Retirement plan vendors sponsoring defined contribution plan documents approved by the Internal Revenue Service (IRS) have begun issuing packages containing the new IRS-approved version of those documents—reflecting the Pension…more

Benefit Plan Sponsors, Defined Contribution Plans, IRS, Pension Protection Act of 2006, Plan Documents

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Connecticut Legislature Makes Changes to Connecticut Paid Sick Leave Law

In its most recent legislative session, the Connecticut General Assembly passed a bill that enacted a number of changes to the law commonly referred to as the Connecticut Paid Sick Leave Law, which originally went into effect on…more

Employee Rights, Paid Leave, Sick Leave

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Massachusetts Enacts Parental Leave for Both Mothers and Fathers

In one of his last acts as governor, former-Governor Deval Patrick signed into law on January 7, 2015 an amendment to the previous Massachusetts Maternity Leave Law that extends eight weeks of unpaid leave to both male and…more

Amended Legislation, Deval Patrick, Employee Rights, Employer Mandates, Family Members

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The Private Sector’s Role in the New Face of Homeland Security

The Obama administration recently announced the creation of the Cyber Threat Intelligence Integration Center (CTIIC), a new governmental agency created to prevent cyber threats by analyzing and integrating digital intelligence…more

CTIIC, Cyber Threats, Cybersecurity, Cybersecurity Framework, Data Breach

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Immigration Update: State Department Announces Longer Delay in Visa Processing Times

Last week, the U.S. Department of State’s (DOS) visa processing database, which controls the issuance of visas and passports at the U.S. consulates abroad, experienced system performance issues (including outages) leading to…more

Delays, Department of State, Passports, Visas

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Supervisor’s Knowledge of Unreported Overtime May Lead to Liability Under the FLSA

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least one-and-one-half times the employees’ regular hourly wage for every hour worked in excess of 40 hours in one week. Courts regularly have…more

Equitable Defenses, FLSA, Unclean Hands, Unpaid Overtime, Wage and Hour

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NLRB’s New “Ambush Election" Rules Go Into Effect: Is Your Organization Ready?

On April 14, 2015, after a four-year battle, the National Labor Relations Board’s (NLRB) final “ambush election” rules, which will dramatically shorten the time between requests for a vote and a union election, go into effect…more

Ambush Election Rules, NLRB

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The Interactive Process Dance, Part Two: What Happens When the Music Stops?

Part one of this two-part series covered the details of the interactive process in California and discussed a scenario in which the employee fails to respond to the employer’s attempts to communicate on an accommodation to his…more

Disability, Employer Liability Issues, Interactive Process, Reasonable Accommodation

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OFCCP’s Proposed Sex Bias Rules Continue Agency’s Focus on Compensation, Gender Identity, and Pregnancy Accommodation

On January 28, 2015, the Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking (NPRM) to replace the current sex discrimination guidelines. This updated rule is intended to reflect…more

Discrimination, EEOC, Equal Pay, Federal Contractors, Gender Identity

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December 31 Section 409A Correction Deadline for Severance Pay Approaching

The Internal Revenue Service(IRS) has given employers until December 31, 2012 to correct a problem frequently found in severance agreements and other similar arrangements. If the problem is not addressed by that date, then it…more

Deferred Compensation, IRS, Section 409A, Severance Agreements, Severance Pay

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The Employment Law Authority - March/April 2013

In This Issue: - Immigration. Washington takes the first step toward immigration reform. - State Round-Up. Learn about the latest employment law news in your state. - Traditional. Wade Fricke and Matthew Kelley…more

ADA, Discrimination, EEOC, H1-B, HIPAA

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City of Chicago Expands “Ban the Box” Law to Smaller Employers and City Agencies

Effective January 1, 2015, the City of Chicago expanded the coverage of Illinois’s “ban the box” law within city limits. The amended Human Rights Ordinance, Section 2-160-010 of the Municipal Code of Chicago, effectively makes…more

Ban the Box, City of Chicago, Criminal Background Checks, Employer Liability Issues, Employer Mandates

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New Jersey “Ban the Box” Regulations Are on the Way

On February 25, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) published draft proposed regulations to implement the New Jersey Opportunity to Compete Act, otherwise known as the “ban the box” law…more

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Philadelphia Mayor Signs New “Promoting Healthy Families and Workplaces” Ordinance

On February 12, 2015, Philadelphia Mayor Michael Nutter signed legislation requiring certain employers in the city of Philadelphia to provide up to five days of paid sick leave each calendar year to their employees. The…more

Employee Rights, Local Ordinance, Paid Leave, Sick Leave

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"Toxic” Mold Claims: Steps to Prevent and Aggressively Defend

TOXIC MOLD. SICK BUILDING SYNDROME. MOLD SICKNESS. These are some of the popular catch phrases employed by those who seek to profit by perpetuating the mythology that has fueled a cottage litigation industry of mold hysteria for…more

Construction Defense Strategies, Mold Litigation, Toxic Mold

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New Jersey Supreme Court Reshapes Sexual Harassment Claims

On February 11, 2015, the New Jersey Supreme Court issued a landmark ruling that will reshape hostile work environment sexual harassment cases brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49…more

Discrimination, Employer Liability Issues, Faragher/Ellerth defense, Hostile Environment, NJ Supreme Court

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Philadelphia Mayor Signs New “Promoting Healthy Families and Workplaces” Ordinance

On February 12, 2015, Philadelphia Mayor Michael Nutter signed legislation requiring certain employers in the city of Philadelphia to provide up to five days of paid sick leave each calendar year to their employees. The…more

Employee Rights, Local Ordinance, Paid Leave, Sick Leave

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MSHA Assistant District Manager Asserts That Competent Persons Performing Workplace Exams Are Agents of the Operator

At a mining industry safety conference in June, an MSHA Assistant District Manager stated that the agency viewed persons that perform workplace examinations pursuant to 30 C.F.R. § 56.18002 as performing an “agent-like” function…more

Compliance, Mining, MSHA

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Diversity in the Legal Profession: Practical Challenges and Every Attorney’s Role in a Successful Outcome

In March of 2013, the Louisiana State Bar Association hosted its sixth annual Conclave on Diversity in the Legal Profession. The purpose of this conclave is to “encourage discussion among judges and attorneys, primarily hiring…more

Bias, Career Development, Discrimination, Diversity, Law Practice Management

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First Circuit Favors Broad Application of Analogue to Airline Deregulation Act Preemption Provision

On September 30, 2014, in Massachusetts Delivery Association v. Coakley, No. 13-2307 (September 30, 2014), the First Circuit Court of Appeals overturned a lower court’s refusal to preempt a Massachusetts independent contractor…more

Airlines, Appeals, Employer Liability Issues, FAAAA, Independent Contractors

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Bad Blood Makes Good Law: Minnesota Supreme Court Recognizes Tortious Interference Claim

In Gieseke v. IDCA, Inc., et al., No. A12-0713 (March 26, 2014), the Minnesota Supreme Court ruled that “tortious interference with prospective economic advantage” is a viable claim under Minnesota law. In so holding, the court…more

Appeals, Economic Injuries, Family Businesses, Tortious Interference

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Mandatory Retirement Plans in Illinois

Is Illinois the precursor to mandatory retirement savings programs across the country the way that Massachusetts was for mandatory health care? Illinois has become the first state to require that private-sector employers offer…more

Benefit Plan Sponsors, Employee Benefits, Employer Mandates, Retirement Plan

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Eugene, Oregon Publishes Proposed Paid Sick Leave Rules

The city of Eugene, Oregon passed a mandatory paid sick leave ordinance last July, which is set to take effect later this year. The city has now published proposed rules that provide the all-important details about how the…more

Employer Mandates, Local Ordinance, Proposed Regulation, Sick Leave

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DOL Clarifies When an Employer’s LCA Wage Obligations Cease to Terminated Workers Who Obtain Subsequent Approved H-1B Employment

On December 22, 2014, the U.S. Department of Labor’s (DOL) Administrative Review Board (ARB) issued an important Final Order and Decision clarifying precisely when an H-1B employer’s Labor Condition Application (LCA) back pay…more

Administrative Review Board, DOL, Employer Liability Issues, Former Employee, H-1B

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The Value Proposition

This article is reprinted with permission from the third edition of U.S. News – Best Lawyers “Best Law Firms.” Kim Ebert, the managing shareholder of Ogletree Deakins, was asked to contribute an article to the third edition of…more

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The Employment Law Authority - October/November 2014

In This Issue: - Employee Benefits. Recent IRS letter reminds employers about issues associated with offering “free” parking - State Round-Up. Learn about the latest employment law news in your state - Best…more

Dart Cherokee Basin Operating Co. v. Owens, Ebola, EEOC, EEOC v Abercrombie, Employee Benefits

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Yule Time Tips, Part III: Holiday Gifts Under Increasing Scrutiny

During the holidays, many of us like to show our appreciation to clients by sending gifts or entertaining them with special dinners or other fun and festive celebrations of the season. But be careful. Corporate gift policies…more

Corporate Gifts, Holiday Gifts, Holidays

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Mexico’s New Safety and Health Regulations for Storing and Handling Materials to Take Effect

On March 11, 2015, the NOM-006-STPS-2014 (Official Standard), which contains new regulations that protect the health and safety of employees who are engaged in activities related to the storage and handling of materials, will go…more

Employer Liability Issues, Mexico, New Regulations, Workplace Safety

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New Jersey “Ban the Box” Regulations Are on the Way

On February 25, 2015, the New Jersey Department of Labor and Workforce Development (NJDOL) published draft proposed regulations to implement the New Jersey Opportunity to Compete Act, otherwise known as the “ban the box” law…more

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2013 Legislative Update

The Louisiana 2013 Regular Legislative Session closed on June 6, 2013. 1. the Louisiana employment discrimination law relative to veterans (La. R.S. 23:331); 2. the Louisiana Equal Pay for Women Act (La. R.S. 23:661…more

Discrimination, Gender-Based Pay Discrimination, Hiring & Firing, New Legislation, Unemployment Benefits

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Exotic Dancers’ Class Action Employment Suit Stays Alive in California

Salazar v. Victory Entertainment, Inc., No. B249888 (December 15, 2014): In a recent decision, a California Court of Appeal revived a class action lawsuit brought by a group of exotic dancers who claimed that they were…more

Adult Entertainment, Class Action, Employee Definition, Employer Liability Issues, Independent Contractors

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Alaska Voters Approve Measure Legalizing Marijuana for Adult Recreational Use

On November 4, 2014, Alaska voters approved a ballot initiative legalizing the recreational use of marijuana for adults aged 21 and over. With passage of the measure, Alaska joined Washington, Oregon, Colorado, and the District…more

Alaska, Ballot Measures, Decriminalization of Marijuana, Marijuana

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OFCCP Flexes its Muscle with Threats of Term Debarment

The Office of Federal Contract Compliance Programs (OFCCP) recently announced a significant monetary settlement of a complaint alleging hiring discrimination by a federal contractor. In this complaint, the agency alleged that…more

Discrimination, Federal Contractors, Hiring & Firing, OFCCP, Racial Discrimination

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U.S. DOL Suffers Set Back on Tip-Pooling Regulations

A federal district court recently invalidated regulations issued by the U.S. Department of Labor (DOL) that prohibit employees from including non-tipped employees in a tip pool in certain situations…more

DOL, FLSA, Tip Credit, Tip-Pooling, Tips

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Iskanian v. CLS Transportation: California Supreme Court Gives Class Action Arbitration Waivers the Green Light

Today, in a decision with significant ramifications for California employers seeking to use class action arbitration waivers as a deterrent to wage and hour class action litigation, the California Supreme Court issued its…more

Arbitration, Class Action, Class Action Arbitration Waivers, Employer Liability Issues, Federal Arbitration Act

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2015 Will Usher In Increased FLSA Liability for Home Health Care Agencies

On Tuesday, September 17, 2013, the U.S. Department of Labor (DOL) issued a final rule extending the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to an estimated two million home health care workers…more

Companionship Exemptions, DOL, FLSA, Home Health Care, Liability

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Being on Call in California Does Not Impede on Rest Breaks

Augustus v. ABM Security Services, Inc., No. B243788 (filed December 31, 2014, pub. ord. January 29, 2015)): In its recently published decision, the California Court of Appeal held that on-call rest breaks are permissible. In a…more

Appeals, On-Call Employees, Rest and Meal Break, Restaurant Industry, Security Guards

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The Employment Law Authority - March/April 2015 #2

In This Issue: - Supreme Court Revives Pregnant UPS Worker's Suit - Spouses of H-1B Visa Holders Applying for Residency Eligible for Work Permits - Turning Metrics Into Money: An Interview With Solange Charas,…more

Age Discrimination, Discrimination, H-1B, Pregnancy Discrimination, SCOTUS

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NLRB Rules That Employee who Launched “F-Bombs” at Company Owner Did Not Lose Protection Under Federal Labor Law

If an employee curses at and blatantly disrespects the owner of the company for whom he works, most people would reasonably conclude that the employee can be discharged. However, a recent decision issued by the National Labor…more

Employee Rights, NLRA, NLRB, Obscenity

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NLRB Issues New Guidance on At-Will Disclaimers

The Office of the General Counsel (GC) of the National Labor Relations Board (NLRB or Board) recently issued two advice memoranda that shed some light on the legality of employers’ “at-will” disclaimers in employee handbooks and…more

At-Will Employment, Employee Handbooks, Employment Contract, NLRA, NLRB

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Cracking the Door? The Eleventh Circuit Again Considers When Out-of-Court FLSA Settlements Are Enforceable

In 1982, the Eleventh Circuit Court of Appeals held in Lynn’s Food Stores, Inc. v. United States that employers and employees cannot settle claims under the Fair Labor Standards Act (FLSA) unless (1) the settlement is supervised…more

FLSA, Over-Time, Settlement, Wage and Hour, Wages

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Getting with the (Wellness) Program: EEOC Proposes New ADA Regulations for Wellness Programs

For some time, employers have faced uncertainty about the status of their wellness programs under the Americans with Disabilities Act (ADA). While the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the…more

ADA, Affordable Care Act, EEOC, Health Insurance, HIPAA

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One-Day Walkouts: Protected Activity or Unprotected Absenteeism?

Over the last two years various community activist groups—many backed by labor organizations—have implemented aggressive, public strategies designed to disrupt the workplace and put pressure on employers, especially in the…more

Absenteeism, Employee Rights, Employer Liability Issues, NLRA, NLRB

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Employer Free to Monitor Employee’s Internet Browsing History, New Jersey Appellate Division Holds

On January 22, 2015, the New Jersey Appellate Division reaffirmed an employer’s right to monitor an employee’s use of his or her workplace computer, including a review of the employee’s Internet browser history. In Liebeskind v…more

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What Is a Sincere Religious Belief? The Fifth Circuit Weighs In On a Religious Discrimination Claim

In a 2-to-1 decision written by Judge Edward Prado, the Fifth Circuit Court of Appeals recently chimed in on an employee’s claim that her employer failed to accommodate a religious observance, for which “she believed strongly…more

Corporate Counsel, Religion, Religious Discrimination

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Virgin Islands Supreme Court Addresses Wrongful Discharge Act and Other Statutory Causes of Action

In a unanimous decision, the Supreme Court of the Virgin Islands held that the Wrongful Discharge Act (WDA) provides a remedy not only when an individual is discharged or resigns under circumstances that are alleged to…more

Constructive Discharge, Employer Liability Issues, Hess Corporation, Hiring & Firing, Virgin Islands

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The Employment Law Authority - November/December 2013

In This Issue: - Harassment. Are your executive training programs effective? - State Round-Up. Learn about the latest employment law news in your state - Unions. Harold Coxson and Baker Wyche discuss the new…more

ADA, Compliance, Employer Liability Issues, FMLA, Harassment

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The Employment Law Authority - March/April 2013

In This Issue: - Immigration. Washington takes the first step toward immigration reform. - State Round-Up. Learn about the latest employment law news in your state. - Traditional. Wade Fricke and Matthew Kelley…more

ADA, Discrimination, EEOC, H1-B, HIPAA

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NLRB General Counsel Issues Memorandum Providing Justification for Employer Rule Decisions

Over the past several years, the National Labor Relations Board (NLRB) has aggressively redefined the landscape for employer rules contained in employee handbooks, employee policies, and/or employment agreements…more

Employee Handbooks, Employment Policies, New Guidance, NLRA, NLRB

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DACA Program Raises Questions For Employers In The I-9 Process

Companies must balance countervailing mandates under immigration law: verifying employment eligibility while not discriminating unlawfully. With the recent implementation of the Deferred Action for Childhood Arrivals (DACA)…more

DACA, Discrimination, Eligibility, Hiring & Firing, I-9

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The Employment Law Authority - March/April 2015 #2

In This Issue: - Supreme Court Revives Pregnant UPS Worker's Suit - Spouses of H-1B Visa Holders Applying for Residency Eligible for Work Permits - Turning Metrics Into Money: An Interview With Solange Charas,…more

Age Discrimination, Discrimination, H-1B, Pregnancy Discrimination, SCOTUS

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The Employment Law Authority - December 2014

In This Issue: - Justices Issue Pro-Employer Rulling in FLSA Case - Ogletree Deakins Named A "Law Firm of the Year" - California Mandates Anti-Bullying Training for Supervisors - OFCCP Issues Final…more

Amazon, Bullying, Discrimination, Email, Federal Contractors

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Fourth Circuit Joins D.C. Circuit In Striking Down NLRB Notice Posting Rule

In a resounding victory for employers across the nation, the Fourth Circuit Court of Appeals affirmed a recent decision of the U.S. District Court for the District of South Carolina, striking down the National Labor Relations…more

NLRA, NLRB, Notice Requirements, Posting Requirements

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Supreme Court Eliminates Notice-and-Comments for Some Agency Interpretations

On March 9, 2015, the Supreme Court of the United States ruled that the Paralyzed Veterans doctrine, which requires an agency to use the notice-and-comment procedures of the Administrative Procedure Act (APA) when issuing a new…more

Administrative Procedure Act, Corporate Counsel, DOL, FLSA, Legal History

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Major League Baseball Volunteers Are not Employees Under the FLSA

On March 26, 2014, the District Court for the Southern District of New York dismissed John Chen’s proposed Fair Labor Standards Act (FLSA) collective action against Major League Baseball (MLB) alleging that MLB had failed to pay…more

Employee Rights, FLSA, MLB, Volunteers

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Arizona Court Of Appeals Decision Highlights Employer’s Burden Of Proving Disqualification From Unemployment Benefits

The Arizona Court of Appeals recently issued an opinion overturning the Unemployment Insurance Appeals Board’s denial of unemployment benefits to an employee who was terminated for excessive tardiness…more

Burden of Proof, Disqualification, Hiring & Firing, Unemployment Benefits, Willful Misconduct

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The Employment Law Authority - December 2014

In This Issue: - Justices Issue Pro-Employer Rulling in FLSA Case - Ogletree Deakins Named A "Law Firm of the Year" - California Mandates Anti-Bullying Training for Supervisors - OFCCP Issues Final…more

Amazon, Bullying, Discrimination, Email, Federal Contractors

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Amendments to D.C. Accrued Sick and Safe Leave Act Creates New Hurdles for Employers

The District of Columbia’s Accrued Sick and Safe Leave Act of 2008 (ASSLA), which requires employers to provide paid leave to employees for their own or a family member’s illness as well as in certain other situations, was…more

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U.S. House Judiciary Committee Approves Legislation Creating Civil Cause of Action Under Federal Trade Secrets Protection Act

Federal trade secret legislation may be closer than you think. On September 17, 2014, the Judiciary Committee of the U.S. House of Representatives approved H.R. 5233, the Trade Secrets Protection Act of 2014, with one amendment…more

Amended Legislation, Legislative Committees, Pending Legislation, Private Right of Action, Trade Secrets Protection Act of 2014

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NLRB Throws in the Towel on Notice Posting Rule

In the end, the notice posting rule proposed by the National Labor Relations Board (NLRB) died not with a bang, but with a whimper. The NLRB’s proposed rule was earlier struck down by both the Fourth Circuit Court of Appeals and…more

NLRB, Notice Requirements

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IRS Acts Quickly to Facilitate Donations for Ebola Victims and Offer Tax Relief

While employers and employees alike are asking questions about the proper workplace response to the Ebola outbreak in West Africa, these same folks are also asking how they can help the victims, their families and those who care…more

Charitable Donations, Ebola, Employment Policies, IRS, Leave of Absence

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Beware of Traps with Independent Contractor Business Models

Companies are increasingly moving away from the traditional employee model and implementing independent contractor models for some aspects of their business to reduce their direct labor costs without sacrificing market share,…more

Hiring & Firing, Independent Contractors, Misclassification

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Oregon’s New Bereavement Leave Benefit — What Every Employer Should Know

Effective January 1, 2014, Oregon employers subject to the Oregon Family Leave Act (OFLA) must allow eligible employees to take up to two weeks of unpaid leave to deal with the death of a family member…more

Bereavement Leave, Employee Handbooks, Family Members, Posting Requirements, Unpaid Leave

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Ninth Circuit Revives Police Officers’ Age Bias Class Action Over Scrapped Exam

Stockwell v. City & County of San Francisco, No. 12-15070 (April 24, 2014): In a recent decision, the Ninth Circuit Court of Appeals diluted the Supreme Court of the United States’ holding in Wal-Mart Stores, Inc. v. Dukes, 131…more

ADEA, Age Discrimination, Appeals, Class Action, Class Certification

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Supreme Court Eliminates Notice-and-Comments for Some Agency Interpretations

On March 9, 2015, the Supreme Court of the United States ruled that the Paralyzed Veterans doctrine, which requires an agency to use the notice-and-comment procedures of the Administrative Procedure Act (APA) when issuing a new…more

Administrative Procedure Act, Corporate Counsel, DOL, FLSA, Legal History

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Misclassification Initiatives Spread As Florida Signs Formal Pact with DOL

On January 13, 2015, the U.S. Department of Labor’s (DOL) Wage and Hour Division and the Florida Department of Revenue’s General Tax Administration (FDOR) entered into a memorandum of understanding (MOU) in which they agreed to…more

Department of Revenue, DOL, Employee Definition, Employer Liability Issues, Enforcement

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NLRB Regional Director Rules College Football Players Can Unionize

On March 26, 2014, a regional director for the National Labor Relations Board (NLRB) issued a decision and direction of election in a union representation petition filed by the College Athletes Players Association (CAPA) seeking…more

College Athletes, NLRB, Unions

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Seventh Circuit Refuses to Review Arbitrator’s Decision to Allow Expert-Prepared Accident Report

Last week, the Seventh Circuit Court of Appeals decided Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Railway Company, No. 12-3415 (March 11, 2014)…more

Accident Reports, Arbitration, Arbitration Agreements, Train Accidents

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Supreme Court Finds Air Carrier Immune From Defamation Claim For Reporting Employee’s Outburst to TSA

On January 27, 2014, the Supreme Court of the United States reversed a nearly $1.2 million jury verdict for defamation against Air Wisconsin Airlines Corporation in a case surrounding the airline carrier’s report about a pilot…more

Air Wisconsin v. Hoeper, ATSA, Defamation, First Amendment, Free Speech

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Latest Round of ICE I-9 Inspection Notices Issued

In recent weeks, employers nationwide have been ordered by Immigration and Customs Enforcement (ICE) to submit their I-9 employment eligibility forms and other documents for inspection. In the last week of May, a new round of…more

Audits, Enforcement, I-9, ICE

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The Impact of NLRB v. Canning - Q&A With Former NLRB Member Brian E. Hayes

The unconstitutionality of the appointments directly impacts all of the employees, employers, and unions that were involved in any of the now invalid decisions…more

Canning v NLRB, First Glance, Legal Perspectives, NLRB, Popular

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New Law on the Horizon for Illinois Employers Settling Tort Claims

On January 1, 2014, a new section of the Civil Practice Law, “Settlement of claims; payment” (735 ILCS § 5/2-2301), will take effect. The Illinois legislature passed the law in an effort to expedite the payment process in…more

Defamation, Release Agreements, Retaliation, Settlement, Tortious Interference

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Teen Posing as Physician Raises Security Concerns for Healthcare Employers

On January 13, 2015, a hospital in West Palm Beach, Florida discovered that an unidentified juvenile had been walking its halls dressed as a physician, wearing a lab coat with the hospital’s logo and a stethoscope. According to…more

Guns-in-Trunks Legislation, HIPAA, Hospitals, Minors, Physicians

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Changing MSHA Penalties: What’s on the Horizon for Mine Operators?

The Mine Safety and Health Administration (MSHA) is in the process of reviewing proposed new civil penalty regulations following multiple hearings in which stakeholders offered their comments. Civil penalties for safety…more

Civil Monetary Penalty, Market Participants, Mining, MSHA, National Mining Association

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EEOC Issues Updated Guidance For Specific Disabilities

The Equal Employment Opportunity Commission (EEOC) recently issued information on protection against disability discrimination in the form of four revised documents. The federal agency issued these guides, which are included in…more

ADAAA, Disability Discrimination, EEOC

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Court Voids $1.5M Contract For Lack Of Consideration

In Yessenow v. Hudson (no. 2:08-cv-00353-PPS-APR), the U.S. District Court for the Northern District of Indiana found that the indemnification agreement and guaranty that Hilton Hudson, M.D. signed with Jeffrey Yessenow, M.D…more

Indemnity Agreements

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Key Issues to Evaluate When Conducting an Internal Wage and Hour Audit

In our last blog post in this series on the “Anatomy of a DOL Audit,” we discussed tips for conducting an effective internal wage and hour audit. Now we consider some key issues to evaluate during that process…more

Audits, DOL, Exempt-Employees, Independent Contractors, Internal Investigations

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Employers Can Decide That Physical Presence at the Workplace is an Essential Function

On April 10, 2015, the Sixth Circuit Court of Appeals issued its long-awaited en banc decision in Equal Employment Opportunity Commission v. Ford Motor Company following a vacated panel decision from April 2014 in which a…more

ADA, Appeals, Attendance, EEOC, Essential Functions

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Avoiding Wage & Hour Lawsuits: Four Steps Every Employer Should Take

In light of the continued onslaught of wage and hour claims made by current and former employees, including putative class and collective actions, there are a number of steps employers can take to help mitigate potential…more

Arbitration Agreements, Audits, Class Action, Payroll Records, Timekeeping

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E.D.N.Y. Finds No Per Se Violation of New York Correction Law Where Employer Failed to Conduct Required Analysis

Griffin v. Sirva, Inc., et al., No. 11-CV-1844 (MKB) (E.D.N.Y. May 29, 2014): Plaintiffs, who were residential movers, alleged that their employer unlawfully terminated their employment due to criminal convictions for sex…more

Criminal Records, Employer Liability Issues, Hiring & Firing, NYSHRL

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Engage—Before You Fire

Consider this scenario: An employee goes out on a leave of absence for anxiety. His doctor says he’s temporarily totally disabled. Then the leave gets extended because the employee is having problems adjusting to the…more

Disability Discrimination, Discrimination, FEHA, Hiring & Firing, Medical Leave

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The Employment Law Authority - March/April 2015 #2

In This Issue: - Supreme Court Revives Pregnant UPS Worker's Suit - Spouses of H-1B Visa Holders Applying for Residency Eligible for Work Permits - Turning Metrics Into Money: An Interview With Solange Charas,…more

Age Discrimination, Discrimination, H-1B, Pregnancy Discrimination, SCOTUS

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How To Calculate Unpaid Overtime, The Sequel: Fifth Circuit Rejects FWW Method In Misclassification Cases

In Black v. SettlePou P.C., the Fifth Circuit Court of Appeals overturned a district court’s ruling concerning the proper methodology for calculating damages when an employee is misclassified as exempt. In so doing, the Fifth…more

Collective Actions, Damages, FLSA, Misclassification, Unpaid Overtime

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Getting Down To Business: Highlights Of New California Employment Laws

With the start of the new year, it is the perfect time for employers to ensure that their policies reflect the changes in California law. We covered many of the laws affecting employers in our “California Legislative Update…more

Compliance, Crime Victims, Employer Liability Issues, FEHA, Minimum Wage

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Proposed Wisconsin Legislation Would Make It Easier for Employers to Enforce Restrictive Covenants

The Wisconsin legislature may soon dramatically change the law that governs restrictive covenants, making them easier to enforce. On March 5, 2015, State Senator Paul Farrow (R-Pewaukee) introduced Senate Bill 69, a…more

Employment Contract, Hiring & Firing, Proposed Legislation, Restrictive Covenants

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A Primer on Voting Leave Requirements: Are You Ready for the Mid-Term Elections?

General elections are scheduled for Tuesday, November 4, 2014. This mid-term election will see all 435 seats in the U.S. House of Representatives and 33 of the 100 seats in the U.S. Senate up for grabs. In addition, numerous…more

Corporate Counsel, Employee Rights, Voting Leave, Voting Rights

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NLRB Still Contemplating “Quickie” Union Election Rules

On November 26, 2013, the National Labor Relations Board (NLRB) issued its semiannual regulatory agenda, which, tellingly, focused on one issue—the Board’s proposed changes to the rules that will speed up union representation…more

NLRB, Union Elections, Unions

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FAA Lets OSHA Standards Board the Plane

Last week, the Federal Aviation Administration (FAA) issued a final policy allowing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to enforce certain of its safety standards for aircraft…more

Compliance, DOL, Enforcement, FAA, OSHA

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Governor Brown Signs Bill Making Companies Liable for Employment Violations of Independent Labor Contractor Companies

This weekend, California Governor Jerry Brown signed Assembly Bill 1897. This bill creates new Labor Code section 2810.3, which applies to all but a very limited number of companies with 25 or more employees (i.e., the “client…more

Contractors, Employer Liability Issues, Labor Code, New Legislation, Subcontractors

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Employers Between a Rock and a Hard Place: Another Puzzling “Status Quo” Case Decided On Other Grounds

The National Labor Relations Board (Board) recently decided a case previously remanded back to it by the District of Columbia Circuit Court of Appeals. The Board’s decision in Arc Bridges, Inc., 362 NLRB No. 56, March 31, 2015,…more

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OFCCP Notice of Proposed Extension of Record-Keeping Requirements for Construction Contractors

On September 2, 2014, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register a proposed renewal of the current record-keeping, notice, and reporting requirements imposed by Executive Order…more

Construction Industry, Contractors, Executive Orders, Federal Contractors, OFCCP

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NLRB Considers Radical Changes to Decades-Long Precedent on Deferral to Arbitration

In yet another attempt to expand protection for employees under Section 7 of the National Labor Relations Act, the National Labor Relations Board (NLRB) is considering a new standard for deferral to labor arbitration that, if…more

ALJ, Arbitration, Collective Bargaining, Employer Liability Issues, Hiring & Firing

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NFL Cheerleader Cries Foul Over Compensation

Standard contracts that sports franchises, such as the National Football League (NFL), use for independent contractors should be closely scrutinized in the wake of a newly filed class action lawsuit that is shining the spotlight…more

Classification, Independent Contractors, NFL, Wage and Hour

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Misuse Of Visas Lands Tech Giant In Hot Water

Infosys, an Indian technology outsourcing company, has agreed to pay a fine of $34 million after an extensive investigation by federal prosecutors in Texas. The investigation alleged that the tech giant misused the B-1 business…more

B-1, Fines, Fraud, H-1B, India

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The Employment Law Authority - March/April 2015 #2

In This Issue: - Supreme Court Revives Pregnant UPS Worker's Suit - Spouses of H-1B Visa Holders Applying for Residency Eligible for Work Permits - Turning Metrics Into Money: An Interview With Solange Charas,…more

Age Discrimination, Discrimination, H-1B, Pregnancy Discrimination, SCOTUS

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Independent Contractor . . . or Not? DOL and Wisconsin DWD Team Up to Reduce Employee Misclassification

On January 20, 2015, the U.S. Department of Labor (DOL) announced that Wisconsin had become the latest state to join the “Misclassification Initiative,” which is designed to protect the rights of employees “by preventing their…more

Corporate Counsel, DOL, FMLA, Independent Contractors, Misclassification

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New Jersey Workplace Poster Requirements Continue to Grow

New Jersey employers may need to put “bigger bulletin board” on their holiday list this year as the number of required workplace posters continues to grow, especially with the proliferation of municipal paid sick leave laws…more

Municipalities, New Legislation, Posting Requirements

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OIG 2015 Plan Focuses on ICE’s Business Selection Process for I-9 Investigation

As part of its 2015 fiscal year Annual Performance Plan published on October 1, 2014, the Department of Homeland Security’s (DHS) Office of Inspector General (OIG) will review the approach of Immigration and Customs Enforcement…more

Audits, DHS, Enforcement, I-9, ICE

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USCIS Completes Data Entry For All FY 2015 H-1B Cap Petitions

On May 2, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that data entry for all FY 2015 H-1B cap petitions has been completed. The agency will now begin to reject and return all H-1B cap-subject petitions…more

H1-B, Lottery, USCIS, Visa Caps, Visas

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Tenth Circuit Upholds Employer’s Inflexible Leave Policy

Equal Employment Opportunity Commission (EEOC) guidance provides that employers violate the Americans with Disabilities Act (ADA) by enforcing inflexible policies with specified leave limits. The EEOC has filed lawsuits against…more

ADA, EEOC, Employer Liability Issues, Employment Policies, Hiring & Firing

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It’s 2:35 p.m. Do You Know (Or Care) Where Your Employees Are?

Today, technological advances make it easier for companies to track exactly where their products are at any given time. These same advances have given employers a similar opportunity to track their employees. Global positioning…more

Employee Rights, Employee Tracking, Technology

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National Defense Authorization Act Precludes OFCCP Jurisdiction Over TRICARE Provider

The U.S. Department of Labor’s Administrative Review Board has found that the Office of Federal Contract Compliance Programs (OFCCP) lacks jurisdiction over Florida Hospital of Orlando, a TRICARE health services provider, based…more

DOL, Jurisdiction, NDAA, OFCCP, TRICARE

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Data Privacy Law in the UK, Part III: Employment Background Checks and Monitoring

In parts one and two of this series summarizing data protection law in the United Kingdom, we looked at the data protection principles to which employers must adhere in relation to obtaining, holding, or disposing of personal…more

Criminal Background Checks, Data Protection, EU, EU Data Protection Laws, UK Data Protection Act

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Portland’s Sick Leave Ordinance—What Every Employer Should Know

Effective January 1, 2014, Portland’s sick leave ordinance goes into effect. The ordinance applies to any private sector employer (both within and outside of the state of Oregon) that employs individuals who work within the city…more

Compliance, Local Ordinance, Paid Leave, Sick Leave

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Legal Protections and Remedies for New Jersey Interns Are on the Horizon

On January 15, 2015, the New Jersey Intern Protection Act was approved by the Assembly Labor Committee and has been sent to the full Assembly for a vote. If adopted, this bill (S539, A3529) would provide interns with the same…more

Employer Liability Issues, Internships, New Legislation, Unpaid Interns, Wage and Hour

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‘Tis the (Retail) Season, Part IV: Are Seasonal Workers Entitled to Health Care Coverage? A 2014 Update

As the holiday shopping season approaches, we are considering a number of issues that employers of seasonal workers might be facing. Primary among these is whether employers are required to provide health care coverage to…more

Employer Mandates, Full-Time Employees, Health Insurance, Holidays, Large Employer

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Fired Employee Who Accused Coworkers of Sleeping with Boyfriend Lacks Triable Bias Claim

A retail employer did not violate federal civil rights laws or the Massachusetts state anti-discrimination law when it fired an employee because she made harassing, disparaging, and inappropriate accusations against her…more

Anti-Discrimination Policies, Discrimination, Harassment, Termination

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Illinois Employment Law Update

As 2014 comes to a close, we would like to take this opportunity to remind our clients with Illinois operations about the recent legislative changes with which Illinois employers must be familiar. A number of the laws are…more

Ban the Box, Employer Liability Issues, Hiring & Firing, Medical Marijuana, New Legislation

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U.S. House Judiciary Committee Approves Legislation Creating Civil Cause of Action Under Federal Trade Secrets Protection Act

Federal trade secret legislation may be closer than you think. On September 17, 2014, the Judiciary Committee of the U.S. House of Representatives approved H.R. 5233, the Trade Secrets Protection Act of 2014, with one amendment…more

Amended Legislation, Legislative Committees, Pending Legislation, Private Right of Action, Trade Secrets Protection Act of 2014

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French Terminations: What Happens if You Miss the End of the Probationary Period?

You know that sinking feeling: you have a new employee in France who is not working out, and the manager has left it until the last minute to let you know. What happens if the required termination notice period will now extend…more

Employer Liability Issues, France, Hiring & Firing, Probationary Period, Termination

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Executive Action on Business Immigration

President Obama has officially announced his plan for a series of executive actions on immigration. While the national discussion is largely focused on illegal immigration, the president’s plan impacts the business community by…more

Barack Obama, DACA, Deportation, Executive Orders, Green Cards

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A WARN Act Roundup: Jury Trial Rights, the Unforeseen Business Circumstances Defense, and the Single Employer Rule

Towards the end of 2014, three federal courts explored developing issues under the federal Worker Adjustment and Retraining Notification Act of 1988 (WARN Act), 29 U.S.C. §§ 2101-2109 et. seq. Below is a summary of three notable…more

Commercial Bankruptcy, Federal Rules of Civil Procedure, Jury Trial, WARN Act

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Terminations in the Workplace: Practical Tips for Reducing Employer Liability

“You’re FIRED!” Donald Trump makes it look easy on his reality television show, The Apprentice, but savvy employers understand that workplace terminations must be carefully planned and executed to reduce the potential for costly…more

Employer Liability Issues, Hiring & Firing, Termination

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OSHA Announces Request for Information on Communication Tower Safety

On April 15, the Occupational Safety and Health Administration (OSHA) published in the Federal Register a Request for Information (RFI) on Communication Tower Safety. The agency requests that the communication tower industry…more

Cell Towers, OSHA, Public Comment, Request For Information, Telecommunications

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Minimum Wage Hikes Hit 21 States

Raising the minimum wage was certainly a hot topic in 2014 (even more so than in 2013). The issue sparked employees in several industries across the country to organize high-profile protests, asserting that minimum wages are not…more

Corporate Counsel, Employer Mandates, Minimum Wage

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Massachusetts Attorney General Issues Guidance on New Domestic Violence Leave Law

In August of 2014, Massachusetts enacted broad reforms of the Commonwealth’s domestic violence laws. As Ogletree Deakins detailed in an August 18, 2014 Massachusetts eAuthority, “Domestic Leave Now Mandated in Massachusetts,”…more

Domestic Violence, Employee Rights, Leave of Absence

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Supreme Court Forges New “Significant Burden” Interpretation of the Pregnancy Discrimination Act

On March 25, 2015, the Supreme Court of the United States settled a controversy surrounding an employer’s policy that provided light-duty work for certain employees (including some disabled employees) but not for pregnant…more

Discrimination, Popular, Pregnancy Discrimination, Reasonable Accommodation, SCOTUS

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Minnesota “Ban The Box” Legislation Update

Minnesota recently passed “ban the box” legislation, which will restrict private employers’ ability to ask about applicants’ criminal backgrounds on employment applications. Signed by the Governor on May 15, 2013 and effective…more

Ban the Box, Criminal Background Checks, Criminal Records, Job Applicants, Public Employers

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National Implications From Settlement of High-Profile Employee Raiding Case

Four major Silicon Valley-based tech companies—Apple, Google, Intel, and Adobe Systems—announced a settlement on Thursday, April 24, in a closely-watched lawsuit accusing them of conspiring to hold down salaries in the tech…more

DOJ, Enforcement Actions, Raids, Settlement, Wage and Hour

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City of St. Petersburg, Florida Passes Wage Theft Ordinance

Under the new City of St. Petersburg “wage theft” ordinance, an employer commits wage theft when the employer fails to pay wages, or a portion of wages, due to an employee within a “reasonable time” (typically 14 business days)…more

Employer Mandates, Local Ordinance, New Legislation, Wage Theft

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Significant Changes In The Regulation Of Temporary Staffing Coming To Massachusetts In 2013

In August 2012, Massachusetts Governor Deval Patrick signed into law a bill that established a series of new legal requirements for temporary staffing agencies and the companies that use their services. The law, called the…more

Staffing Agencies

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Further Delay to the EU Data Protection Regulation

January 28, 2015 marked the ninth annual European Data Protection Day. To commemorate the day, Andrus Ansip, European Commission Vice-President for the Digital Single Market and Vera Jourová, the European Union’s (EU)…more

EU, EU Data Protection Laws

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Implied Rights in Whistleblower Policies: What DC’s Latest Ruling Means for Employers

On March 18, 2015, the U.S. District Court for the District of Columbia ruled on a motion to dismiss in a case that will have potentially serious consequences for D.C. employers that include written whistleblower and other…more

Adverse Employment Action, Anti-Retaliation Provisions, Employee Handbooks, Employer Liability Issues, Employment Policies

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Legal Protections and Remedies for New Jersey Interns Are on the Horizon

On January 15, 2015, the New Jersey Intern Protection Act was approved by the Assembly Labor Committee and has been sent to the full Assembly for a vote. If adopted, this bill (S539, A3529) would provide interns with the same…more

Employer Liability Issues, Internships, New Legislation, Unpaid Interns, Wage and Hour

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Protected Concerted Activity on Facebook: The NLRB “Likes” This

The National Labor Relations Board (NLRB) continues to expand its interpretation of the forms of employee online behavior that constitute protected concerted activity under the National Labor Relations Act. Recently, in Three D,…more

Employer Liability Issues, Facebook, NLRA, NLRB, Protected Concerted Activity

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The Employment Law Authority - December 2014

In This Issue: - Justices Issue Pro-Employer Rulling in FLSA Case - Ogletree Deakins Named A "Law Firm of the Year" - California Mandates Anti-Bullying Training for Supervisors - OFCCP Issues Final…more

Amazon, Bullying, Discrimination, Email, Federal Contractors

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The Employment Law Authority - January/February 2015

In This Issue: - High Tech, High Risk: Protecting Health Plan Data: Recent Cyber Attack Reminds Employers to Take Swift Action - EEOC FY 2014 Statistics Are Here: What Do They Mean for Employers? - State…more

Anthem Blue Cross, Cybersecurity, EEOC, Employment Policies, Enforcement Statistics

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New Year’s Resolution for Missouri Employers: Arbitration Agreements In Light of Jimenez v. Cintas Corporation

Still looking for a New Year’s resolution? The Missouri Court of Appeals rang in 2015 by refusing to enforce an arbitration agreement between an employer and an employee. The decision continues the robust trend in Missouri of…more

Appeals, Arbitration, Arbitration Agreements, At-Will Employment, Consideration

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Michigan Court of Appeals Says Fired Medical Marijuana Users Can Collect Unemployment Benefits

On October 23, 2014, the Michigan Court of Appeals ruled that employees discharged for having failed a drug test because of their medical marijuana use are not disqualified from receiving unemployment benefits…more

Medical Marijuana, Termination, Unemployment Benefits

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Arizona Supreme Court Limits Employer’s Vicarious Liability For Employee’s Off-Duty, On-Location Assignment Car Accident

On July 9, 2012, the Arizona Supreme Court issued an employer-friendly opinion holding that an employer was not vicariously liable for negligent conduct committed by an employee during an out-of-town assignment, after work…more

Employer Liability Issues, Off-Duty Employees, Respondeat Superior, Vicarious Liability

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New Texas Law Limits Negligent Hiring, Supervision Claims Against Employers

On June 14, Governor Rick Perry signed a new law that will preclude most causes of action for negligent hiring or negligent supervision against employers, general contractors, and premises owners. The new law (Texas H.B. 1188)…more

Criminal Background Checks, Criminal Records, Hiring & Firing, Negligent Hiring, New Legislation

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How To Calculate Unpaid Overtime, The Sequel: Fifth Circuit Rejects FWW Method In Misclassification Cases

In Black v. SettlePou P.C., the Fifth Circuit Court of Appeals overturned a district court’s ruling concerning the proper methodology for calculating damages when an employee is misclassified as exempt. In so doing, the Fifth…more

Collective Actions, Damages, FLSA, Misclassification, Unpaid Overtime

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FLSA Collective Actions—How Your Company Can Avoid Being Targeted

The number of wage and hour lawsuits filed by current and former employees under the Fair Labor Standards Act (FLSA) continues to increase. According to one source, collective actions brought under the FLSA alleging wage and…more

Audits, Class Action, FLSA, Over-Time, Wage and Hour

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Florida Supreme Court Upholds Legislation Requiring Public Employees To Contribute To Retirement Accounts

In a 4-3 decision in Scott v. Williams, No. SC12-520 (Fla. Jan. 17, 2013), the Florida Supreme Court recently upheld the constitutionality of a 2011 law, Senate Bill 2100, requiring Florida’s public employees to contribute three…more

Breach of Contract, COLA, Collective Bargaining, Public Employees, Retirement

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USCIS Will Begin Accepting Cap-Subject H-1B Petitions for FY 2016 on April 1, 2015

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2016 will begin on Wednesday, April 1, 2015. Cap-subject H-1B petitions will have an employment start date of October…more

DOL, H-1B, Highly-Skilled Workers Visa, Hiring & Firing, USCIS

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NLRB General Counsel Issues Aggressive Immigration Initiative—Employers Now Face Extraordinary Penalties

On February 27, 2015, National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr. injected the NLRB into the national debate regarding border security, the rights of undocumented workers and their families, and…more

Border Security, Deportation, DHS, DOJ, Employer Liability Issues

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Fifth Circuit Rejects NLRB's D.R. Horton Decision

In a major win for employers, the Fifth Circuit Court of Appeals, on December 3, 2013, rejected the highly controversial D.R. Horton, Inc. decision from the National Labor Relations Board (NLRB). …more

Arbitration, Class Action, Collective Actions, D.R. Horton, D.R. Horton v NLRB

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Tempe City Council Broadens Anti-Discrimination Ordinance To Encompass Gay, Lesbian, Bisexual, And Transgendered Individuals

On February 27, 2014, by unanimous vote, the Tempe City Council approved a proposal to expand the Tempe City Code’s anti-discrimination ordinance to prohibit discrimination in housing, employment, and public accommodation on the…more

Anti-Discrimination Policies, Gender Identity, Sexual Orientation, Sexual Orientation Discrimination

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OFCCP Posts Two New FAQs on Veteran Self-Identification and the VETS-4212 Form

On October 27, 2014, a new reporting form for veterans, the VETS 4212 reporting form, replaced the VETS-100A and VETS-100 Forms. In response to inquiries about contractors’ new requirements as a result of this chance, on January…more

Federal Contractors, Hiring & Firing, OFCCP, Self-Reporting, Veterans

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EEOC Issues Enforcement Guidance on Pregnancy Discrimination and Related Issues

Yesterday, by a 3-to-2 vote of commissioners, the U.S. Equal Employment Opportunity Commission (EEOC) approved a new guidance on the Pregnancy Discrimination Act (PDA). The first comprehensive update on the subject of…more

Corporate Counsel, EEOC, Employee Rights, Pregnancy, Pregnancy Discrimination

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Your Guide to the Proposed Rules Under Executive Order 13658 Setting a Minimum Wage for Federal Contractors

On February 12, 2014, President Barack Obama signed Executive Order 13658 (“Establishing a Minimum Wage for Contractors”), with instructions to U.S. Secretary of Labor Thomas E. Perez to issue regulations by October 1, 2014…more

Executive Orders, Federal Contractors, Minimum Wage, Wage and Hour, Wages

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Puerto Rico Bans Sexual Orientation and Gender Identity Discrimination in Employment

Last week, on May 29, 2013, Puerto Rico’s governor, Alejandro García Padilla, signed S.B. 238 into law enacting Act No. 22, which prohibits employment discrimination based on sexual orientation or gender identity, both in the…more

Discrimination, Gender Discrimination, Gender Identity, Hiring & Firing, Job Applicants

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California Court Revisits Employer’s Duty to Reasonably Accommodate Disabled Employee Under FEHA

Swanson v. Morongo Unified School District, No. G050290 (November 26, 2014): In a recent unpublished decision, a California Court of Appeal held that a teacher, whose request to teach a particular grade as an accommodation after…more

Corporate Counsel, Employer Liability Issues, FEHA, Reasonable Accommodation, School Districts

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San Francisco Mayor Signs Ordinance To “Ban The Box” On Employment Applications

On February 14, 2014, San Francisco Mayor Edwin M. Lee signed San Francisco’s Fair Chance Ordinance, which “bans the box” on employment applications and restricts private employers’ ability to use criminal history information…more

Ban the Box, Employment Application, Job Applicants

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California’s Voting Leave Law: Employers’ Obligations as Election Day Approaches

As Election Day quickly approaches, California employers are reminded that the state voting leave law allows employees to take time off to vote in a statewide election…more

Employee Rights, Voting Leave, Voting Rights

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Feb. 2 Deadline Looming to Implement Retroactive Increase in 2014 Mass Transit Benefit Limits

Affected employers must move quickly to take advantage of a special administrative procedure regarding a retroactive increase in excludable transit benefits enacted on December 19, 2014, under the Tax Increase Prevention Act of…more

Commuter Tax Benefits, Deadlines, Employer Liability Issues, FICA Taxes, Filing Deadlines

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Indiana Supreme Court Upholds Right–to-Work Law

The debate over the constitutionality of Indiana’s right-to-work law may finally be over. In Zoeller v Sweeney (No. 45S00-1309-PL-596, November 6, 2014), the Indiana Supreme Court reversed a lower court ruling that had held…more

Employer Liability Issues, Hiring & Firing, Right to Work, Union Membership, Unions

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Miners Can Prevent Fatal Accidents

With a momentary lapse of attention, any of us can cause a grave accident––at home, in a vehicle, on vacation, or at work. Miners must be ever vigilant for their own safety and the safety of others…more

Mining, Safety Precautions, Workplace Hazards, Workplace Injury

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Sorting Laundry: California Court Reaffirms Scope Of Uniform Trade Secrets Act

Angelica Textile Services, Inc. v. Park, No. D062405 (October 15, 2013): A California Court of Appeal recently held that claims of breach of contract, breach of fiduciary duty, and unfair competition are not “displaced” or…more

Breach of Contract, Breach of Duty, Fiduciary Duty, Unfair Competition, UTSA

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The D.C. Wage Theft Law’s Next Steps: DOES Issues Notice and Template

The District of Columbia’s Wage Theft Prevention Amendment Act of 2014 (2014 WTPAA) went into effect on February 26, 2015, after completing congressional review. In an effort to promote compliance with the 2014 WTPAA, the D.C…more

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USCIS 2014 Ombudsman Annual Report Confirms Increased Scrutiny for L-1 Intracompany Transferrees

On June 27, 2014, U.S. Citizenship and Immigration Services (USCIS) released its 2014 Ombudsman Annual Report. The Ombudsman Annual Report confirms what employers and immigration attorneys have been experiencing for the past two…more

Immigrants, L-1, Ombudsman, USCIS, Visas

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California Labor Commissioner Revises Sick Pay Notice Obligation

As the July 1, 2015 deadline for employers to implement California’s new paid sick leave law approaches, employers are finding a number of ambiguities in the law that make it challenging to implement. The Office of the Labor…more

Healthy Workplace Act, Paid Leave, Paid Sick Leave Act, Sick Leave, Wages

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Don’t Be Bulldozed by Snow Days: What to Consider Before Docking Pay for Weather-Related Absences

With thanks likely to the polar vortex, states across the nation are experiencing record low temperatures this winter. The bitterly cold winter has caused employees to call off work (or show up late) and employers to voluntarily…more

Employer Liability Issues, FLSA, Severe Weather, Wage and Hour, Weather Policy

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A WARN Act Roundup: Jury Trial Rights, the Unforeseen Business Circumstances Defense, and the Single Employer Rule

Towards the end of 2014, three federal courts explored developing issues under the federal Worker Adjustment and Retraining Notification Act of 1988 (WARN Act), 29 U.S.C. §§ 2101-2109 et. seq. Below is a summary of three notable…more

Commercial Bankruptcy, Federal Rules of Civil Procedure, Jury Trial, WARN Act

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Spring: A Time for Change in UK Employment and Data Protection Law

Spring is always a time for new beginnings: the end of the financial year and the start of a new one, government election season, and time to advance clocks forward for daylight saving time. In the United Kingdom, spring also…more

Compensatory Awards, EU Data Protection Laws, Parental Leave, UK, UK Employment Appeal Tribunal

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Summary of the EEOC’s New Strategic Enforcement Plan and What Employers Need to Know

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) recently released to the public its draft Strategic Enforcement Plan (SEP or Plan). The SEP will take effect October 1, 2012, and will remain in effect until…more

Anti-Retaliation Provisions, Discrimination, EEOC, Hiring & Firing, Migrant Workers

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U.S. Supreme Court Again Takes on FLSA Donning and Doffing

Unionized employers whose employees must wear protective equipment may soon receive direction on whether they must pay for time spent donning and doffing the gear. On February 19, 2013, the U.S. Supreme Court granted review on…more

Collective Bargaining, Doffing, DOL, Donning, FLSA

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City of Columbia Is First in Missouri to Approve “Ban the Box” Legislation

In keeping with the “ban the box” legislative trend, the Columbia City Council unanimously passed a “ban the box” ordinance on December 1, 2014. The ordinance, which went into effect immediately, prohibits public and private…more

Ban the Box, Criminal Background Checks, Hiring & Firing, Job Applicants, Job Offers

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Time-Barred Claim . . . Or Is It? Supreme Court Agrees To Review Fourth Circuit State Statute of Repose Case

As reported on the Ogletree Deakins Environmental Law blog in July of 2013, a divided panel of the Fourth Circuit Court of Appeals held that the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA or…more

CERCLA, Contamination, Environmental Claims, Environmental Liability, Environmental Policies

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Federal OSHA Proposes to Take Over Enforcement of Construction Standards in Arizona

On August 21, 2014, the federal Occupational Safety and Health Administration (OSHA) proposed to revoke its approval of Arizona’s state occupational health and safety plan with respect to construction. If OSHA follows through on…more

Construction Accidents, Construction Industry, Construction Site, Construction Workers, Enforcement

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Sixth Circuit Rules for Employers in FLSA Case

The Sixth Circuit Court of Appeals recently affirmed judgment for the employer in a collective action brought under the Fair Labor Standards Act (FLSA) by 91 current and former special investigators (SIs) employed by Nationwide…more

Collective Actions, DOL, FLSA, Over-Time, Special Investigators

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Missouri Minimum Wage Increases Effective January 1, 2015

The Missouri Department of Labor and Industrial Relations announced an increase to Missouri’s minimum wage, effective January 1, 2015. Missouri’s minimum wage has now increased to $7.65 per hour. This 15-cent increase over the…more

Consumer Price Index, Employer Mandates, Minimum Wage, New Legislation

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California Court Rules on Whether to Compel Arbitration Where Employer Could Not Authenticate Employee’s Electronic Signature

Ruiz v. Moss Bros. Auto Group., Inc., No.E057529 (December 23, 2014): Challenges to the validity and enforcement of arbitration agreements continue to be a hotly litigated area of California wage and hour law, specifically in…more

Appeals, Arbitration, Arbitration Agreements, Authentication, E-Signatures

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The Waiting is the Hardest Part: Final Regulations on the PPACA’s 90-Day Waiting Period Released

On February 24, 2014, the Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA) of the U.S. Department of Labor (DOL), and the U.S. Department of Health and Human Services (HHS) jointly released…more

Affordable Care Act, DOL, EBSA, Employer Group Health Plans, Health Insurance

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NLRB Finally Finds Facebook Activity That It Doesn’t “Like”

The National Labor Relations Board (NLRB) finally found a Facebook conversation it couldn’t bring itself to “Like.” In Richmond District Neighborhood Center, Case 20-CA-091748 (October 28, 2014), the NLRB held that a Facebook…more

Adverse Employment Action, Corporate Counsel, Facebook, Insubordination Policy, NLRA

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The Interactive Process Dance, Part Two: What Happens When the Music Stops?

Part one of this two-part series covered the details of the interactive process in California and discussed a scenario in which the employee fails to respond to the employer’s attempts to communicate on an accommodation to his…more

Disability, Employer Liability Issues, Interactive Process, Reasonable Accommodation

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The Diversity and Inclusion Punchline: How One Stand-up Comic Opened My Eyes to a Bigger Picture

The most mundane experiences can often leave a remarkable impact. My husband and I recently went out to see one of his new favorite comedians. We arrived at the outdoor music theater where thousands of people from various races,…more

Best Management Practices, Diversity

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Florida’s New Data Breach Notification Requirements Take Effect July 1

On June 20, 2014, Florida Governor Rick Scott signed the Florida Information Protection Act of 2014 (FIPA) into law. FIPA imposes stringent new security and notice requirements on businesses and employers that maintain personal…more

Compliance, Data Breach, Data Protection

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D.C. Joins the “Ban the Box” Trend and Enacts the Fair Criminal Record Screening Amendment Act of 2014

The primary initiative of the “Ban the Box” nationwide campaign is to persuade employers to remove the “check box” asking applicants if they have a criminal record from their hiring applications. The purpose of the initiative is…more

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Avoiding Mistletoe Mishaps, Part I: Seven Employment Topics To Consider When Hiring Seasonal Workers

As 2013 comes to an end, we will consider a number of issues that employers might be facing at the end of the year. In this blog series, we will cover topics such as seasonal hiring, religious discrimination claims stemming from…more

At-Will Employment, Discrimination, Employer Liability Issues, FLSA, Holiday Parties

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Illinois Supreme Court’s Refusal To Review Restrictive Covenant Decision Leaves Employers With Uncertainty

The Illinois Supreme Court’s recent refusal to review the Illinois Appellate Court’s controversial decision in Fifield v. Premier Dealer Services, Inc., No. 1-12-0327, 2013 IL App (1st) 120327 (Jun. 24, 2013) leaves employers…more

Consideration, Restrictive Covenants

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Electronic Recordkeeping: OSHA Manages to Make a Bad Proposal Even Worse

In November 2013, the Occupational Safety and Health Administration (OSHA) proposed regulations requiring employers to submit injury and illness data electronically, rather than maintain paper OSHA Form 300 logs of work-related…more

Bodily Injury, OSHA, Recordkeeping Requirements, Reporting Requirements, Workplace Injury

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Independent Contractor or Employee: How Some Countries Differ

In this series of blog posts, we have examined the use of independent-contractor relationships by multinational organizations. In our last three posts, we identified issues for global entities that are considering using…more

Classification, Full-Time Employees, Independent Contractors, International Labor Laws

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Will Automatic Gratuities at Restaurants Be a Thing of the Past?

Automatic gratuities for large parties are commonplace in many restaurants, bars, and hotels throughout the country. However, as of January 2014, the Internal Revenue Service (IRS) now classifies these automatic gratuities as…more

IRS, Payroll Taxes, Restaurant Industry, Tips

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Disability Access Litigation on the Rise

In an article published recently in The Wall Street Journal (“Disability Lawsuits Against Small Businesses Soar,” October 15, 2014), staff writer Angus Loten reported that accessibility lawsuits brought under the Americans with…more

ADA, Disability, Disability Discrimination, Failure to Accommodate, Public Accommodation

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Complying With Wage Garnishments in Texas—What You Need to Know

When you have tens of thousands of employees, it is very likely that your payroll and human resources (HR) departments receive wage garnishment orders for employees every week. Texas law is restrictive in this area, and it is…more

Human Resources Professionals, Payroll Taxes, Wage and Hour, Wage Garnishment

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New Jersey Supreme Court Reshapes Sexual Harassment Claims

On February 11, 2015, the New Jersey Supreme Court issued a landmark ruling that will reshape hostile work environment sexual harassment cases brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49…more

Discrimination, Employer Liability Issues, Faragher/Ellerth defense, Hostile Environment, NJ Supreme Court

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Second Circuit Critical of DOL Test in Pending Unpaid Intern Cases

Glatt et al. v. Fox Searchlight Pictures Inc., No. 13-4478 (2d Cir.) and Wang et al. v. The Hearst Corp., No. 13-4480, (2d Cir.): On January 30, 2015, the Second Circuit Court of Appeals held oral arguments in two closely…more

Class Action, DOL, Employer Liability Issues, Entertainment Industry, Film Industry

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Supreme Court Declines to Hear Challenge of Illinois Independent Contractor Classification Law

On October 14, 2014, the Supreme Court of the United States refused to consider a challenge to the Illinois Employee Classification Act, which classifies workers in the construction industry as employees unless they can meet the…more

Construction Industry, Construction Workers, Employee Definition, Employer Liability Issues, Independent Contractors

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IRS Announces 2015 COLA Increases for Dollar Limitations on Benefits and Contributions

On October 23, 2014 the Internal Revenue Service (IRS) announced the cost-of-living adjustments impacting tax-qualified pension plans for 2015. The increase in the cost-of-living index met the statutory thresholds that trigger…more

Benefit Plan Sponsors, COLA, Defined Contribution Plans, IRS

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Seventh Circuit Holds that the ADA Mandates Reassignment of Disabled Employees to Vacant Positions

Overruling its own precedent, the U.S. Court of Appeals for the Seventh Circuit (which covers Indiana, Illinois, and Wisconsin) recently held that the Americans with Disabilities Act (ADA) requires employers to reassign disabled…more

ADA, Disability, Discrimination, EEOC, Reasonable Accommodation

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New York Court Holds That Alcohol Treatment Is Not Compensable Time

Gibbs v. City of New York, No. 12-CV-8340 (S.D.N.Y. Jan. 23, 2015): The Southern District of New York held that the Fair Labor Standards Act (FLSA) does not require an employer to pay overtime to two female police officers whom…more

Drug & Alcohol Abuse, Drug Treatment, FLSA, Wage and Hour

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Honored in the Breach: Employer Action Items for an Insurer Data Breach

This morning, Anthem Blue Cross and Blue Shield, one of the largest health insurers in the country, notified its policyholders, members, and business partners that it was recently the target of an external cyber attack that…more

Anthem Insurance, Blue Cross, Blue Shield, Cyber Attacks, Data Breach

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Rhode Island Enacts Employee Social Media Privacy Legislation

Rhode Island has recently enacted legislation intended to protect job applicants’ and employees’ social media accounts and information. The new law prohibits employers from requiring job applicants or employees to disclose their…more

Employment Policies, Hiring & Firing, Job Applicants, Passwords, Popular

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Oregon Legalizes Recreational Marijuana Use

On November 4, 2014, Oregon voters approved a ballot measure to legalize recreational marijuana use. The new Oregon law, known as the Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act, allows people 21 years…more

Election Results, Marijuana

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USCIS Will Begin Accepting Cap-Subject H-1B Petitions for FY 2016 on April 1, 2015

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2016 will begin on Wednesday, April 1, 2015. Cap-subject H-1B petitions will have an employment start date of October…more

DOL, H-1B, Highly-Skilled Workers Visa, Hiring & Firing, USCIS

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Healthcare Reform in the U.S. Territories; Prepayment of Taxes for Puerto Rico Retirement Plans

The summer of 2014 has brought further guidance for health plan coverage in the U.S. territories and for retirement plan coverage in Puerto Rico. Issuers and employer sponsors of Puerto Rico group health plans and employer…more

Affordable Care Act, Business Taxes, Employee Benefits, Employee Rights, Employer Group Health Plans

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Federal Judge Approves Contractual Limitation On Time To Bring Employment Claims Under Oregon Law

A federal court in Oregon recently ruled that employment agreements may impose a reasonable limitation on the time period in which an employee may bring statutory and common law claims against his or her employer, even when that…more

Employee Benefits, Employee Rights, Employer Liability Issues, Employment Contract, Statute of Limitations

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The D.C. Wage Theft Law’s Next Steps: DOES Issues Notice and Template

The District of Columbia’s Wage Theft Prevention Amendment Act of 2014 (2014 WTPAA) went into effect on February 26, 2015, after completing congressional review. In an effort to promote compliance with the 2014 WTPAA, the D.C…more

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Court Vacates DOL’s New “Companionship Services” Definition

On January 14, 2015, the court in Home Care Association of America v. Weil vacated the U.S. Department of Labor’s (DOL) regulation narrowing the definition of “companionship services” under the Fair Labor Standards Act (FLSA)…more

Companionship Exemptions, DOL, FLSA, Home Health Agencies, Home Health Care

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Illinois Extends Sexual Harassment Protection to Unpaid Interns

Further extending the Illinois Human Rights Act’s already expansive protection of victims of sexual harassment, Illinois Governor Pat Quinn last month signed into law a bill amending the Act to protect unpaid interns against…more

Employer Liability Issues, Human Rights, New Amendments, Sexual Harassment, Unpaid Interns

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Administration Publishes Fall 2014 Unified Regulatory Agenda

We expect 2015 to be a very busy year for actions on new or proposed federal regulations in the absence of congressional legislation. That was confirmed on November 21, 2014, when the administration published its “Unified…more

DOL, FAR, NLRB, OFCCP, OLMS

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Love Is Love, But in Light of DOMA Employers Should Adjust Health, Retirement, and Tax Planning

Now that they Supreme Court has ruled, in a common refrain heard on Twitter today, that love is love is love, what does this actually mean going forward? And, specifically, we asked attorneys writing on JD Supra to tell us what…more

Discrimination, DOMA, Employee Benefits, ERISA, FMLA

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Sweeping Immigration Reform Bill Passes Senate

On June 27, 2013, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744) passed the Senate by a vote of 68 to 32…more

Immigration Reform, New Legislation

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Much Ado About Payroll Cards

In my last blog post, “To Fee or Not to Fee—The Pros and Cons of Payroll Cards,” I discussed the growing popularity of payroll cards and several U.S. senators’ plea for guidance on this burgeoning pay practice. Perhaps in…more

CFPB, Disclosure Requirements, EFTA, Financial Statements, Payroll Cards

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Tennessee Governor Signs Law Prohibiting Employers From Disciplining Employees With Firearms in Vehicles

Two weeks ago, we reported that the Tennessee General Assembly had voted in favor of adding a provision to Tennessee’s “Guns in Trunks” law. On April 6, 2015, Governor Haslam signed the bill into law…more

Employer Liability Issues, General Assembly, Governor Haslam, Guns-in-Trunks Legislation, New Legislation

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FMLA Policy In Handbook Does Not Satisfy Individualized Notice Requirements Of FMLA, New Jersey District Court Holds

The Family and Medical Leave Act (FMLA) requires that employers provide both general notice to their employees of their rights under the FMLA and individualized notice to employees requesting or inquiring about leave. In Young…more

FMLA, FMLA Guidebook, Notice Requirements

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Employers’ Demand for H-1B Visas Quickly Exceeds USCIS Cap . . . Again

As in recent years, the strong demand for H-1B visas for scientists, engineers, computer programmers, and other foreign workers in so-called “specialty occupations” again led employers in the United States to file petitions in…more

H-1B, Popular, USCIS, Visa Caps, Visas

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Fragmented Workforces: Specialty Healthcare And The Advent Of “Micro-Units”

The National Labor Relations Board recently made it easier for unions to win representation elections by allowing unions to fragment workforces and cherry-pick the unit of employees most likely to support unionization. On March…more

Decision-Making Process, Multiple Bargaining Units, NLRB, Specialty Healthcare, Unions

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Worker’s Failure to Perform His Job Duties Satisfactorily Dooms FEHA Retaliation Claim

Manner v. Intevac, Inc., No. H038979 (January 2, 2015): The California Court of Appeal recently upheld a trial court’s granting of summary judgment of a former employee’s claims of retaliation in violation of the Fair Employment…more

Appeals, FEHA, Hiring & Firing, Retaliation, Summary Judgment

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Fourth Circuit Approves “Exempt” Classification of CEO’s Secretary

The Fourth Circuit Court of Appeals recently held that the Fair Labor Standards Act’s administrative employee exemption properly applied to a Chief Executive Officer’s (CEO) secretary. Altemus v. Fed. Realty Inv. Trust, 2012…more

Administrative Employee Exemption, Exemptions, FLSA

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How Retailers Are Responding to the New “Ambush Election” Rules With Employee Engagement Strategies

On April 14, 2015, the National Labor Relations Board’s “ambush election” rules went into effect, making it easier for unions to organize in the retail setting and beyond. The next day, demonstrations against retailers and…more

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Recent Illinois Federal Court Rulings Cloud Fifield’s Bright-Line Test

Two recent rulings in the Northern District of Illinois, Eastern Division and the Central District of Illinois, Peoria Division, have further blurred the “bright line” two-year consideration rule established by the Illinois…more

Appeals, Consideration, Employer Liability Issues, Restrictive Covenants

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Germany’s First National Minimum Wage Law Will Take Effect on January 1, 2015

On January 1, 2015, Germany’s Minimum Wage Law, or Mindestlohngesetz, will take effect. Under this first-ever national minimum wage law, almost any employee in Germany—including contract employees, as well as employees of…more

Germany, Minimum Wage, New Legislation

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Revisiting Rochow: The Sixth Circuit Rejects Earlier $3.8 Million Equitable Award in Recent En Banc Decision

Just over a year ago, a panel decision by the Sixth Circuit Court of Appeals in Rochow v. Life Insurance Company of North America, 737 F.3d 415 made big news when the court upheld the district court’s award of $3.8 million in…more

Appeals, Denial of Benefits, Disgorgement, En Banc Review, Equitable Relief

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A WARN Case Study: Are Workers on Layoff “Employees” and the Hidden Dangers of Exposing Controlled Groups to Liability

Last week the U.S. District Court in Cleveland issued a decision that, once again reminds us in two ways how devilishly tricky the Worker Adjustment and Retraining Notification (WARN) Act can be when determining what is a…more

Covered Entities, Employee Definition, Employer Liability Issues, Involuntary Reduction in Force, Manufacturers

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Boys Will Be Boys? Dolphins Face the Tough Question of Where Locker Room Behavior Ends and Workplace Harassment Begins

There is no crying in football, but is there harassment? The Miami Dolphins, a National Football League (NFL) franchise, faces this question in the wake of a highly-publicized bullying scandal involving the Dolphins’ 24-year-old…more

Athletes, Bullying, Harassment, Hazing, NFL

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$15 Minimum Wage in Chicago on March Ballot

The Chicago Board of Election Commissioners recently confirmed that in March of 2014 some Chicago residents will vote on a nonbinding ballot referendum on the following question: “Shall the city of Chicago require a minimum wage…more

Ballot Measures, Minimum Wage

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The Employment Law Authority - January/February 2015

In This Issue: - High Tech, High Risk: Protecting Health Plan Data: Recent Cyber Attack Reminds Employers to Take Swift Action - EEOC FY 2014 Statistics Are Here: What Do They Mean for Employers? - State…more

Anthem Blue Cross, Cybersecurity, EEOC, Employment Policies, Enforcement Statistics

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New FMLA Poster Must Be Up By March 8

If you haven’t done it already, you will want to display the new Family and Medical Leave Act (FMLA) poster by March 8, 2013. …more

DOL, Flight Crews, FMLA, Military Service Members, Notice Requirements

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