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

One Ninety One Peachtree Tower 191 Peachtree Street, N.E., Suite 4800
Atlanta, GA 30303, United States

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Diversity—More Than Checkbox Demographics

Diversity is more than “checkbox” demographics. This may seem obvious, but I think it’s an important point that is often overlooked. Organizations often take a narrow view of diversity by focusing on things like the gender and…more

Business Development, Career Development, Corporate Culture, Diversity

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Avoiding Mistletoe Mishaps, Part VI: When Religion And Work Collide—Responding To Requests For Accommodations At Work

As 2013 comes to an end, we have been considering a number of workplace issues that employers might face at the end of the year and the beginning of the holiday season. Part six of our year-end holiday series explains how to…more

Employer Liability Issues, Holidays, Reasonable Accommodation, Religion

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Preserving Some “Bite”: The Fourth Circuit Approves Summary Judgment for Employer in a SOX Retaliation Case

As we have discussed in earlier posts, the recent trend in court decisions under the Sarbanes-Oxley Act (SOX) has been to lighten the burden on complainants and to expand the universe of cases that proceed to decisions on the…more

Administrative Review Board, Adverse Employment Action, Appeals, DOL, Hiring & Firing

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Illinois Permits Employer Use of Payroll Cards

On August 6, 2014, Illinois Governor Pat Quinn signed HB5622 into law, amending the Illinois Wage Payment and Collection Act (IWPCA) to permit employers to pay employees using payroll cards. Up until now, the IWPCA only…more

New Legislation, Payroll Cards, Wage and Hour, Wages

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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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WHD Publishes Final Rule Increasing Federal Contractors’ Minimum Wage

On October 7, 2014, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) published its Final Rule establishing standards and procedures to implement Executive Order 13658, entitled “Establishing a Minimum Wage…more

DOL, Employee Rights, Federal Contractors, Minimum Wage, Wage and Hour

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Avoiding Mistletoe Mishaps, Part III: OSHA Releases Crowd Management Safety Guidelines For Retailers

As 2013 comes to an end, we have been considering a number of workplace issues that employers might face at the end of the year and the beginning of the holiday season. In parts one and two of this blog series, we covered…more

OSHA, Retailers, Safety Precautions

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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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Bromance Gone Bad: The Immigration Bunkers of a Golfer’s Marriage

The P-1A visa category is reserved for those “internationally recognized” individual athletes or teams that seek to enter the United States temporarily for the sole purpose of performing in a competition, event, or performance…more

Athletes, Immigrants, Sports, Visas

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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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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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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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State Court Lawsuit Removable if Plaintiff-Employee’s Pleadings “Fully Incorporate” EEOC Charge

“You have been sued.” Upon reading these first few words of a state court citation, most Texas employers—indeed, most employers—make it their first order of business to remove the case to federal court if at all possible…more

Civil Rights Act, EEOC, Employer Liability Issues, Pleading Standards, Pleadings

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The Employment Law Authority - July/August 2013

In This Issue: - Supreme Court Issues Two Key Title VII Rulings - Ogletree Deakins Launches New Fall Seminar - Are Your HIPAA Privacy Policies Up To Date - OFCCP Clarifies Damages For Victims Of Bias - The…more

Bias, Confirmation Proceedings, Discrimination, EEOC, Harassment

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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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The Wage & Hour Perils of Employing Personal Assistants

No one would ever accuse Lady Gaga of being boring. Case in point: her current legal woes, which make an excellent and entertaining cautionary tale for employers…more

Administrative Expenses, FLSA, Lady Gaga, Unpaid Overtime, Unpaid Wages

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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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OSHA and the NLRB Offer Safety Whistleblower Plaintiffs a Second Bite of the Apple by Resurrecting Untimely Whistleblower Claims

In our last Workplace Safety & Health blog post, we discussed proactive steps employers can take should the Occupational Safety and Health Administration (OSHA) arrive with a union representative or community activist to inspect…more

Employee Rights, NLRA, NLRB, OSHA, Unions

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What Happens When The Limitations Provision in the Plan As Applied Creates An Impossible Accrual Date?

Approximately six months ago, the Supreme Court of the United States, in Heimeshoff v. Hartford Life & Accident Insurance Co., 134 S. Ct. 604 (2013), addressed whether an employee benefit plan covered by the Employee Retirement…more

Claims Limitations Period, Disability, Disability Insurance, ERISA, Heimeshoff v. Hartford Life & Accident Insurance Co.

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Portland Paid Sick Leave Ordinance Passes

The city of Portland joined San Francisco, Seattle, Washington D.C., and the state of Connecticut today when it passed a paid sick leave ordinance. Under the new ordinance, businesses with six or more employees must provide up…more

Local Ordinance, Medical Leave, Paid Leave

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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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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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Wage Garnishments—A Big Problem with Solutions on the Horizon

Today, much-needed attention is being paid to wage garnishments. National Public Radio (NPR) released a story concerning the increasing use of wage garnishments to collect debts. The NPR piece relies on a report also released…more

Debt Collection, Legislative Agendas, NPR, Wage Garnishment

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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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Happy 40th Birthday, ERISA!

Today, ERISA turns 40! It is hard to believe that the Employee Retirement Income Security Act (ERISA), the law that ignited pension reform in the United States, has been around for four decades. To celebrate the law’s long,…more

Employee Benefits, ERISA, Pension Reform

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Using Your Social Media Strategy to Protect Trade Secrets and Minimize Liability

As most employers know, restrictive covenant agreements, often referred to as Confidentiality Agreements or Proprietary Information Agreements, are not the only documents that can be used to protect employers’ confidential and…more

Social Media, Social Media Policy, Trade Secrets

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R.I. Enacts “Ban-the-Box” Law, Limiting Employer Inquiries into Applicants’ Criminal Histories

Effective January 1, 2014, a new law in Rhode Island will ban employers from inquiring on job applications about the criminal histories of applicants…more

Ban the Box, Criminal Background Checks, Criminal Records, Discrimination, Employer Liability Issues

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Judgment Reduced, but the Importance of Monitoring Plan Investments Reaffirmed

On March 19, 2014, the Eighth Circuit Court of Appeals upheld one of the first excessive fee rulings in favor of retirement plan participants. Two years ago, in Tussey v. ABB, Inc., et al., No. 06-4305 (Mar. 31, 2012), a…more

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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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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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SEC Brings First Whistleblower Anti-Retaliation Enforcement Action

On June 16, 2014, the U.S. Securities and Exchange Commission (SEC) resolved its first whistleblower retaliation enforcement action. The SEC’s order against Paradigm Capital Management, Inc. is the first-ever enforcement action…more

Chief Compliance Officers, Dodd-Frank, Employer Liability Issues, Enforcement Actions, Investment Advisers Act of 1940

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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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Right-to-Work’s Impact on Union Membership in Michigan

Michigan’s two right-to-work laws became effective on March 28, and have likely left many wondering how they impact their own workplaces and what effect they will have on union membership in the future. Essentially, the laws…more

Collective Bargaining, Right to Work, Union Security Clauses, Unions

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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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Third Department Affirms Unemployment Insurance Appeal’s Board Finding Of No Misconduct Due To Unintentional Internet Usage

In the Matter of the Claim of Jay Osborne, 102 A.D.3d 1048 (3d Dep’t Jan. 24, 2013): In this case, the plaintiff was terminated for violating his employer’s policy against personal use of the Internet during work hours because…more

Unemployment Insurance, Willful Misconduct

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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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FDNS Site Visit Program: Coming Soon to an L-1 Employer Near You

In the February/March 2014 issue of the Immigration eAuthority, we reported on the expansion by U.S. Citizenship and Immigration Services (USCIS) of site visits to certain L-1 employers under the Administrative Site Visit and…more

Employer Mandates, FDNS, L-1, L-1 Visas, Notice of Intent

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Administration Announces Plan to Postpone Employer Mandate Assessments Until 2015

A Treasury Department official announced late this afternoon that the Obama administration “will provide an additional year” before certain provisions of the Affordable Care Act go into effect…more

Affordable Care Act, Delays, Employer Mandates, Pay or Play, Shared Responsibility Rule

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Second Circuit Affirms Rulings In Long-Standing Suit Involving Title VII Class Claims Brought By New York City Teachers

Gulino v. The Board of Education of the New York City School District of the City of New York, No. 13-cv-1001 (2d Cir. Feb. 4, 2014): A recent decision by the Second Circuit Court of Appeals affirmed a ruling by the lower court…more

Board of Education, Civil Rights Act, Class Action, Teachers, Title VII

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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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EB-2 India Retrogresses Significantly in November

As predicted in the August/September 2014 issue of the Immigration eAuthority, the U.S. Department of State’s (DOS) Visa Bulletin for November 2014 indicates that the priority date for the employment-based second preference…more

Department of State, EB-2, Hiring & Firing, USCIS, Visas

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Seattle Increases Minimum Wage to $15.00 Per Hour

Joining Hawaii, Maryland and Connecticut, all of which have voted to gradually raise their state minimum wages to $10.10 per hour, and Massachusetts, which has voted to gradually increase its minimum wage to $11.00 per hour,…more

Employee Rights, Hiring & Firing, Minimum Wage, Wage and Hour

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“Hybrid” Wage And Hour Class Actions Approved By Third Circuit

On March 27, 2012, a unanimous three-judge panel of the Third Circuit Court of Appeals issued an opinion in Knepper v. Rite Aid, Inc. reversing the district court’s ruling that the plaintiffs could not pursue state wage and hour…more

Class Action, FLSA, Rite Aid, Wage and Hour, Wages

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Colorado Legislative Wrap-Up

The 2013 Colorado legislative session resulted in three new laws that are significant for employers…more

Credit Reports, Damages, Discrimination, Hiring & Firing, Job Applicants

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MSHA/OSHA Report - May 2013

Escalating Enforcement by MSHA of Prohibition against Advance Notice of Inspection - Section 103 of the Federal Mine Safety Act requires the Secretary of Labor to conduct frequent inspections and investigations at mines…more

Advance Notice, Investigations, Mining, MSHA, OSHA

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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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Avoiding Mistletoe Mishaps, Part IV: 20 Tips For A Festive, Safe, Non-Litigious Office Holiday Party

As 2013 comes to an end, we have been considering a number of workplace issues that employers might face at the end of the year and the beginning of the holiday season. In parts one, two, and three of this blog series, we…more

Holiday Parties, Holidays, Liability

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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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What Has the “Nuclear Option” Wrought?

With the Obama administration unable to get labor and employment law changes through a gridlocked Congress, one of its significant accomplishments and lasting legacies may be its remarkable record of reshaping federal regulatory…more

DOL, EEOC, Federal Judiciary, Judicial Appointments, NLRB

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2014 Louisiana Legislative Update

The Louisiana 2014 Regular Legislative Session closed on June 9, 2014. In the subsequent weeks, Governor Bobby Jindal signed into law several bills that affect employers. These new laws, which are summarized below, became…more

Employee Rights, Employer Liability Issues, Hiring & Firing, Human Rights Code, Legislative Agendas

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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 Independent Contractor Law Survives Trade Association’s Challenge

The Massachusetts Independent Contractor statute, Mass. G.L. c. 149, § 148B, establishes a rigorous three-part test for determining whether a worker performing services for an employer may be considered an independent…more

Contractors, Independent Contractors, Non-Profits

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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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The Employer’s Reference Guide to Information About Ebola

Concerns related to the Ebola outbreak are increasing among both employers and employees in the United States. The outbreak is currently most active in the West African nations of Guinea, Liberia, Nigeria, and Sierra Leone…more

CDC, Corporate Counsel, Ebola, Emergency Alerts, Employer Liability Issues

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NLRB to Decide Whether Northwestern’s Scholarship Football Players Are Students or Employees

Late yesterday, the National Labor Relations Board (NLRB) in Washington, D.C. granted the request for review (i.e., an appeal) filed by Northwestern University in the much-watched case involving the status of Northwestern’s…more

College Athletes, Employee Definition, Football, NLRB, Northwestern University

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Under New California Law—No Proof of Sexual Desire Required to Prove Sexual Harassment

On August 12, California Governor Jerry Brown signed into law Senate Bill (SB) 292 which amends section 12940 of the California Fair Employment and Housing Act…more

Harassment, Jerry Brown, New Legislation, Sexual Conduct, Sexual Harassment

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OFCCP’s New Scheduling Letter and Expanded Itemized Listing

As many federal contractors know, the Office of Federal Contract Compliance Programs (OFCCP) begins a compliance evaluation (or audit) by sending to the selected contractor a letter scheduling the audit. The listing of documents…more

Audits, Federal Contractors, OFAC, Scheduling Letters

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Third Department Affirms Unemployment Insurance Appeal’s Board Finding Of No Misconduct Due To Unintentional Internet Usage

In the Matter of the Claim of Jay Osborne, 102 A.D.3d 1048 (3d Dep’t Jan. 24, 2013): In this case, the plaintiff was terminated for violating his employer’s policy against personal use of the Internet during work hours because…more

Unemployment Insurance, Willful Misconduct

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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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Illinois’s New “Ban the Box” Law Prohibits Asking About Criminal Histories on Job Applications

On July 19, 2014, Illinois Governor Pat Quinn signed the Job Opportunities for Qualified Applicants Act, making Illinois the fifth state to bar private employers from asking job applicants about their criminal backgrounds until…more

Background Checks, Ban the Box, Criminal Background Checks, Employer Liability Issues, Hiring & Firing

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New Jersey Governor Christie Signs Ban the Box Law

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act”—also referred to as the “ban the box” law—adding New Jersey to the growing list of states where employers are prohibited…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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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 Social Media Privacy Bill Becomes Law

On August 29, 2013, a more limited social media privacy bill (A2878), adopting the common sense conditions set forth in Governor Chris Christie’s previous conditional veto, was enacted. The new law, effective December 1, 2013,…more

Employee Rights, Passwords, Privacy Policy, Social Media

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Major Changes At The EEOC Could Mean Major Liability For Employers

The Equal Employment Opportunity Commission’s (EEOC) investigation and litigation tactics have been a hot topic lately, as the agency recently announced its plan to target more employers in bigger, more costly systemic…more

Disability Discrimination, Discrimination, EEOC, Enforcement, Enforcement Actions

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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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What Does The ACA Shared Responsibility Final Rule Mean To Large Employers?

As many small employers rejoice over a delayed effective date, large employers should be rolling up their sleeves to adapt their evolving shared responsibility compliance strategies for 2015 to a new final rule from the U.S…more

Affordable Care Act, Employee Benefits, Employer Mandates, Healthcare, IRS

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Eugene, Oregon Moving Ahead With Paid Sick Leave Ordinance

Following the lead of larger cities like Portland, Seattle, and San Francisco, the City Council of Eugene, Oregon is moving ahead with plans for a mandatory sick leave ordinance. Following the presentation of a 70-page Task…more

Earned Sick Time, Employer Liability Issues, Employment Policies, Paid Leave, Sick Leave

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FDNS Site Visit Program: Coming Soon to an L-1 Employer Near You

In the February/March 2014 issue of the Immigration eAuthority, we reported on the expansion by U.S. Citizenship and Immigration Services (USCIS) of site visits to certain L-1 employers under the Administrative Site Visit and…more

Employer Mandates, FDNS, L-1, L-1 Visas, Notice of Intent

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Supreme Court Expands Scope of Sarbanes-Oxley Whistleblower Liability

Yesterday, the Supreme Court of the United States issued its opinion in Lawson v. FMR LLC, No. 12-3, holding that the whistleblower protections of the Sarbanes-Oxley Act of 2002 protect not only the employees of regulated public…more

Lawson v FMR, Retaliation, Sarbanes-Oxley, SCOTUS, Whistleblowers

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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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Ebola: Emerging Concerns for Healthcare Facilities and Employers

Recent months have been filled with news reports about the Ebola virus outbreak in West Africa. On August 8, 2014, the World Health Organization (WHO) stated that the spread of the Ebola virus in West Africa had become an…more

CDC, Ebola, Healthcare, Healthcare Facilities, Hospitals

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Madness in March—The Final Four Reasons to be Wary of the NCAA Tournament in the Workplace

Okay, let’s get one thing straight right away: this is NOT a blog post telling you that it’s okay to sponsor an NCAA pool in your office or even suffer one to exist. That’s because I’m a lawyer and, according to federal and…more

Discrimination, Employment Policies, Sports, Sports Gambling

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Arbitrator’s Decision Finding Just Cause For Discharge Dooms Subsequent Statutory Claims, District Of New Jersey Holds

In Robbins v. U.S. Foodservice, Inc., 2012 WL 3781258 (D.N.J., August 30, 2012), a union employee’s discrimination (NJLAD) and leave law (FMLA and NJFLA) claims were dismissed because her union previously had grieved her…more

Arbitration Agreements, Collateral Estoppel, Discrimination, FMLA, Hiring & Firing

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New Jersey Ban the Box Bill Revised Again, Advances to Governor Christie

On June 26, 2014, the New Jersey legislature approved the most recent iteration (A1999) of the “Opportunity to Compete Act” (also referred to as the “Ban the Box” bill), which will now be sent to Governor Chris Christie for…more

Ban the Box, Criminal Records, Job Applicants

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Who Needs the Aggregation? Ninth Circuit Rejects Combining of PAGA Penalties to Establish Minimum Amount in Controversy

The Ninth Circuit Court of Appeals recently issued a decision in Urbino v. Orkin Services of California, Inc., No. 11-56944 (August 13, 2013) holding that civil penalties available under California’s Private Attorneys General…more

Aggregation Rules, Amount in Controversy, Civil Monetary Penalty, Diversity Jurisdiction, PAGA

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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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Quit or Retired? It Makes No Difference When It Comes to Paying Final Wages in California

McLean v. State of California, No. C074515 (August 19, 2014): In a recent decision, a California Court of Appeal held that state law requirements for payment of final wages and waiting time penalties payable to employees who…more

Appeals, Hiring & Firing, Putative Class Actions, Retirement, Wages

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Seattle Increases Minimum Wage to $15.00 Per Hour

Joining Hawaii, Maryland and Connecticut, all of which have voted to gradually raise their state minimum wages to $10.10 per hour, and Massachusetts, which has voted to gradually increase its minimum wage to $11.00 per hour,…more

Employee Rights, Hiring & Firing, Minimum Wage, Wage and Hour

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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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NCAA’s Limits on Athletes’ Compensation for Use of Their Names or Likenesses Violates Antitrust Laws

The National Collegiate Athletic Association’s (NCAA) fundamental beliefs about the role of student-athletes and its economic model just received a partial rebuke from the courts. On August 8, 2014, a federal judge ruled that…more

Antitrust Provisions, College Athletes, Injunctions, Licensing Rights, NCAA

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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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Employers Should Reassess Strategy in Light of New Rulings from the Supreme Court

The Supreme Court of the United States recently issued two landmark rulings affecting the viability of arbitration as an alternative to costly litigation…more

American Express, American Express v Italian Colors Restaurant, Arbitration, Arbitration Agreements, Arbitration Awards

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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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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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Nurse Fired for Refusing Flu Vaccine for Secular Reasons Entitled to Unemployment, New Jersey Appellate Division Holds

In Valent v. Board of Review, A-4980-11T2 (App. Div., June 5, 2014), the New Jersey Appellate Division ruled that a hospital employee who refused a flu shot for purely secular reasons was still eligible for unemployment…more

Corporate Counsel, Termination, Unemployment, Unemployment Benefits

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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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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 Declines to Revisit Employee Use of Company Email Systems . . . For Now

Under current National Labor Relations Board (NLRB) law, employees do not have a statutory right to use their employers’ email systems for union organizing or for other purposes. Email systems remain employer property for now,…more

Corporate Counsel, Electronic Communications, Email, Email Policies, Employer Liability Issues

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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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I-94 Errors: How to Address Missing or Incorrect I-94 Cards

Since July of 2014, it has been reported that certain visa petition approval notices (Form I-797s) have been issued by U.S. Citizenship and Immigration Services (USCIS) without I-94 cards attached. In addition, U.S. Customs and…more

Customs and Border Protection, I-94 Cards, Immigrants, USCIS, Visas

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The Employment Law Authority - March/April 2014

In This Issue: - Depressed Worker Does Not Qualify For Leave: Court Finds FMLA Requires A Period Of Incapacity - Homer Deakins Testifies Before NLRB: Discusses Controversial Changes To Representation Election…more

Employee Rights, Employer Liability Issues, Equal Pay, Federal Contractors, FMLA

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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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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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Major Retrogression in the EB-2/India Immigrant Visa Category Expected in the Fall of 2014

The U.S. Department of State’s (DOS) Visa Bulletin sets out per country priority dates that regulate when an individual may begin the final phase of the “green card” process, either through adjustment of status or consular…more

Department of State, EB-2, Immigrants, India, Popular

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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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The Employment Law Authority - January/February 2013

In This Issue: - Email Request Does Not Constitute "Complaint" - Former NLRB Member Joins Ogletree Deakins - For Employers, Pay-Or-play Proposals Could Be Worse, Much Worse - The NLRB In 2013: More Controversy…more

Canning v NLRB, Discrimination, FLSA, Immigration Reform, NLRB

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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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The Ohio Supreme Court Gives Teeth To Noncompete Agreements Applicable To Acquired Employees

The Ohio Supreme Court recently reversed its prior decision limiting the enforceability of non-compete agreements acquired in mergers and acquisitions. In Acordia of Ohio, L.L.C. v. Fishel (Acordia I), the Supreme Court…more

Assignments, Non-Compete Agreements

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Misclassification Initiatives Spread as Alabama Signs Formal Pact with DOL

On October 2, 2014, the Alabama Department of Labor and the U.S. Department of Labor (DOL) entered into a formal Memorandum of Understanding (MOU) or agreement to share information regarding independent contractor…more

Audits, Corporate Counsel, DOL, Employer Liability Issues, Independent Contractors

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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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Recent U.S. Supreme Court Decision Will Not Likely Affect Alabama’s Immigration Law

On June 25, 2012, the U.S. Supreme Court ruled in Arizona v. United States that several provisions of Arizona’s immigration law (S.B. 1070) could not be enforced because federal immigration law preempts state laws regarding…more

E-Verify, Preemption, SCOTUS

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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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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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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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Extra! Extra! Read All About It! Illinois Court Clarifies Contractor’s Right to Recover for Extra Work

The Illinois Appellate Court from the Fourth District broadly interpreted the elements necessary for contractors and subcontractors to recover for extra work, allowing for recovery based on the implicit approval of the owner…more

Contractors, Subcontractors

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Cap-Subject H-1B Petitions For FY 2014 Should Be Filed On March 29, 2013

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2014 begins on Friday, March 29, 2013. U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B…more

H-1B, Visas

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What's the One Thing Every Company's Telecommuting Policy Must Include?

If, under certain circumstances, employers are required to accomodate remote work, what essential elements should be included in any company's Telecommuting Plan?…more

ADA, Hiring & Firing, Legal Perspectives, Reasonable Accommodation, Telecommuting

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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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New Health Care Reform Fees—Will You Be Required to Pay?

The Patient Protection and Affordable Care Act established two fees to be paid by insurers and self-insured plans: (1) the Transitional Reinsurance Program (TRP) fee to raise revenue for health insurance issuers that cover high…more

Affordable Care Act, Fees, Form 720, HHS, HIPAA

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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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Inclusion Is A Choice: How My Hindu Wedding Taught Me How To Promote Diversity

This past summer, I married my wife in a traditional Indian wedding. We were both born in America and it was important for us to have a wedding that not only celebrated our love for one another, but also celebrated our culture,…more

Diversity

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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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Values First! An Interview with GlaxoSmithKline Senior Vice President, PD Villarreal

As described in Dan Pink’s book, To Sell is Human, GlaxoSmithKline (GSK), the global pharmaceutical, vaccines, and consumer health care company, has adopted a groundbreaking approach to paying its salespeople. Rather than base…more

GlaxoSmithKline, Incentive Compensation

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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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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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Bullying in the Workplace: California’s New Training Requirement

Everyone remembers a bully in junior high school. She might have been the mean girl who told others not to be your friend, or the brute who inflicted his cruelty with wedgies and half nelsons. Sadly, some people never graduate…more

Bullying, Training, Workplace Bullying

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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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The Employment Law Authority - May/June 2014

In This Issue: - Immigration. New proposal aimed at attracting highly-skilled immigrants. - State Round-Up. Learn about the latest employment law news in your state. - Traditional. J. Hamilton Stewart and Matthew…more

Chief Compliance Officers, Compliance, Employee Handbooks, Employer Liability Issues, Harassment

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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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Did An Employer Inflate Its Worker’s Performance Deficiencies as a Pretext for Disability Bias? Mass. Court Says Maybe

On November 4, 2013, in Akerson v. Pritzker, No. 12-10240-PBS, the U.S. District Court for the District of Massachusetts rejected the race discrimination and Equal Pay Act claims brought by a former employee of the U.S. Census…more

Census Bureau, Disability Discrimination, Discrimination, Equal Pay Act, Gender-Based Pay Discrimination

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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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I-94 Errors: How to Address Missing or Incorrect I-94 Cards

Since July of 2014, it has been reported that certain visa petition approval notices (Form I-797s) have been issued by U.S. Citizenship and Immigration Services (USCIS) without I-94 cards attached. In addition, U.S. Customs and…more

Customs and Border Protection, I-94 Cards, Immigrants, USCIS, Visas

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New Jersey Appellate Division Holds That the NJLAD Prohibits Discrimination Against Employees in the Process of Being Divorced

In Smith v. Millville Rescue Squad, 2014 WL 2894924 (App. Div. June 27, 2014), the Appellate Division held that the New Jersey Law Against Discrimination’s (NJLAD) prohibition against discrimination based on “marital status”…more

Discrimination, Divorce, Employer Liability Issues, Marital Status

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EB-2 India Retrogresses Significantly in November

As predicted in the August/September 2014 issue of the Immigration eAuthority, the U.S. Department of State’s (DOS) Visa Bulletin for November 2014 indicates that the priority date for the employment-based second preference…more

Department of State, EB-2, Hiring & Firing, USCIS, Visas

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New Jersey Bill Seeks To Raise Unemployment Insurance Rate Cap

On May 31, 2012, the New Jersey Senate unanimously passed a bill (S1121) aimed at assessing a higher unemployment insurance rate on employers with markedly lower Employer Reserve Ratios (i.e., those employers with more former…more

Unemployment Insurance

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Newark Close To Becoming Next City To Approve Sick Leave Ordinance

On January 28, 2014, the Newark City Council approved a sick leave ordinance that would require most private employers in Newark to provide their workers with paid time off. If the mayor of Newark signs this ordinance, Newark…more

Employee Benefits, Employee Rights, Sick Leave

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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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Governor Cuomo Proposes Increased Minimum Wage And Significant Changes To New York’s Employment Law In State Of The State Address

Although New York State’s recent strict assault weapons ban has garnered the majority of attention from Governor Andrew Cuomo’s 2013 legislative agenda, Governor Cuomo also has made significant proposals that will affect…more

Discrimination, Gender-Based Pay Discrimination, Minimum Wage, Unemployment Insurance, Wages

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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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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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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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Sixth Circuit Prohibits Employers From Contractually Shortening the Limitations Period for FLSA Claims

The Sixth Circuit Court of Appeals recently issued a decision in Boaz v. FedEx Customer Information Services, Inc., rejecting an employer’s defense to a claim made for unpaid overtime on the basis of a provision in an employment…more

Employer Liability Issues, Employment Contract, FLSA, Limitation Periods

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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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New Jersey Governor Christie Signs Ban the Box Law

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act”—also referred to as the “ban the box” law—adding New Jersey to the growing list of states where employers are prohibited…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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Small Employers Catch a Big Break!

Employers with 50 to 99 employees were granted a break on Monday when the U.S. Treasury Department gave them an additional year to comply with the employer mandate of the Affordable Care Act (ACA). This relief was granted as…more

Affordable Care Act, Delays, Pay or Play, Shared Responsibility Rule, Small Business

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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 Department of Labor Relaxes Rule Requiring Contemporaneous Authorization for Employee Wage Deductions

In a rare employer-friendly move, the Illinois Department of Labor recently amended the requirements imposed on employers when making deductions from employee wages. Specifically, the state agency amended the employee consent…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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Internships out of Fashion? Wage Lawsuits on the Rise in New York

Internships and training programs have been a staple of the fashion industry (among many other industries) for years. Luxury retailers have traditionally offered internships in the areas of communications, marketing,…more

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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 Significant Alterations to Reporting Requirements

On September 11, 2014, the Occupational Safety and Health Administration (OSHA) announced a final rule that significantly changes an employer’s duties to report workplace injuries to the agency…more

employer, Final Rules, OSHA, Reporting Requirements, Workplace Hazards

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Federal Minimum Wage Stagnant but 13 States Raise Their Minimum Wages

In 2013, the U.S. Department of Labor made raising the federal minimum wage one of its priorities. The federal agency sought to create a discussion about the minimum wage through social media and town hall meetings across the…more

DOL, Employee Rights, Minimum Wage, Wages

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Massachusetts Increases Minimum Wage

On June 26, 2014, Massachusetts Governor Deval Patrick signed into law legislation that will significantly increase the state’s minimum wage for hourly and tipped workers over the next three years. The current Massachusetts…more

Employee Rights, Minimum Wage

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Indiana Court Finds Employee’s Attempt At Humor Was Not Protected Religious Expression

Ronald Ogle worked as a Community Employment Specialist for the Indiana Department of Workforce Development (IDWD). On November 10, 2012, he forwarded to his coworkers an email that included a picture of a barbeque restaurant…more

Civil Rights Act, Freedom of Religion, Religion, Termination, Title VII

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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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Increase in Florida’s Minimum Wage

In 2004, the state of Florida enacted a constitutional amendment, establishing a state minimum wage. The minimum wage applies to all employees in the state who are covered by the federal minimum wage…more

Minimum Wage, Wages

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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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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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New Jersey Governor Christie Signs Ban the Box Law

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act”—also referred to as the “ban the box” law—adding New Jersey to the growing list of states where employers are prohibited…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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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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Cap-Subject H-1B Petitions For FY 2015 Should Be Filed On March 31, 2014 To Be Received By USCIS On April 1, 2014

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2015 begins on Tuesday, April 1, 2014. Note that petitions need to be mailed on March 31 to ensure receipt by the…more

Filing Deadlines, H-1B, Immigrants, USCIS, Visas

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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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Is Your Arbitration Agreement Still Enforceable in Missouri After Baker v. Bristol Care, Inc.?

This summer, the Missouri Supreme Court issued a decision that will affect arbitration agreements relied on by employers across the state. The decision—one of many in a recent trend of Missouri cases restricting the…more

Arbitration, Arbitration Agreements, Arbitrators, Class Action, Consideration

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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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Minnesota Supreme Court Refuses to Expand Exception to Employment-at-Will Doctrine

The Minnesota Supreme Court rang in 2014 with an employer-friendly decision on the at-will employment rule. On January 2, in Dukowitz v. Hannon Security Services (No. A11-1481), the state’s highest court held that the…more

At-Will Employment, Employee Rights, Employer Liability Issues, Public Policy, Termination

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Major Changes At The EEOC Could Mean Major Liability For Employers

The Equal Employment Opportunity Commission’s (EEOC) investigation and litigation tactics have been a hot topic lately, as the agency recently announced its plan to target more employers in bigger, more costly systemic…more

Disability Discrimination, Discrimination, EEOC, Enforcement, Enforcement Actions

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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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Cap-Subject H-1B Petitions For FY 2015 Should Be Filed On March 31, 2014 To Be Received By USCIS On April 1, 2014

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2015 begins on Tuesday, April 1, 2014. Note that petitions need to be mailed on March 31 to ensure receipt by the…more

Filing Deadlines, H-1B, Immigrants, USCIS, Visas

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Revised Form I-9 Effective March 8, 2013

A revised Form I-9, Employment Eligibility Verification, the form that must be completed by all employers to verify the employment eligibility of every new hire, will be introduced on March 8, 2013, according to an advance copy…more

Eligibility, Hiring & Firing, I-9

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The Guide Dog Days of Summer: Board Affirms Another Micro-Unit After Specialty Healthcare

Since the National Labor Relations Board (NLRB) issued the Specialty Healthcare decision in 2011, unions have been permitted to organize “micro-units” of an employer, such as employees of a department rather than employees of an…more

Employer Liability Issues, NLRB, Specialty Healthcare

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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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Implied Covenant Of Good Faith And Fair Dealing Saves California Employer’s Arbitration Agreement

Serpa v. California Surety Investigations, Inc., No. B237363 (April 19, 2013): In a recent decision, a California Court of Appeal held that an arbitration agreement contained in an employee handbook was not invalid solely on the…more

Arbitration, Arbitration Agreements, Attorney's Fees, Covenant of Good Faith and Fair Dealing, Employee Handbooks

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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’s New Scheduling Letter and Expanded Itemized Listing

As many federal contractors know, the Office of Federal Contract Compliance Programs (OFCCP) begins a compliance evaluation (or audit) by sending to the selected contractor a letter scheduling the audit. The listing of documents…more

Audits, Federal Contractors, OFAC, Scheduling Letters

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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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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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IRS Reminds Employers Value of “Free” Parking May Be Taxable Fringe Benefit

A recent Information Letter issued by the Internal Revenue Service (IRS) on the taxation of employer-provided parking, although noncontroversial, serves as a useful reminder that “free” parking for employees may result in taxes…more

Employee Benefits, Fair Market Value, Fringe Benefits, Income Taxes, IRS

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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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Sixth Circuit Rules Employers Can Avoid Fiascos Like Romney’s “47%” Recording by Banning Secret Recordings in the Workplace

With President Obama’s inauguration next week, I am reminded of the surreptitious recording that played a significant role in the final weeks of his campaign last year—the infamous “47%” recording. Secret recordings can have a…more

Audio Recording, Discrimination, EEOC, Employment Policies, Hiring & Firing

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Association Discrimination: The New Wave of Discrimination Claims

It is well-established that employers cannot discriminate against employees due to their age, gender, race, religion, disability, or any other class protected under federal and/or state laws. However, a lesser-known cause of…more

Association Discrimination, Discrimination, Title VII

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Ways to Help Business Internship Partners Avoid DOL Pitfalls

Many colleges and universities require some kind of practical, hands-on experience as a part of their curriculum. Employers and schools alike place a premium on real world experience that cannot always be gained from sitting in…more

Colleges, DOL, FLSA, Internships, Supervision

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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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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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Bullying in the Workplace: California’s New Training Requirement

Everyone remembers a bully in junior high school. She might have been the mean girl who told others not to be your friend, or the brute who inflicted his cruelty with wedgies and half nelsons. Sadly, some people never graduate…more

Bullying, Training, Workplace Bullying

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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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New York Court Of Appeals Emphasizes Need For Interactive Process When Accommodating Employees’ Disabilities

Jacobsen v. New York City Health and Hospitals Corp., No. 2014-34 (N.Y. Court of Appeals, Mar. 27, 2014): New York’s highest court recently ruled that an employer’s failure to engage in a good-faith interactive process regarding…more

Disability, Disability Discrimination, Employee Rights, Employer Liability Issues, Reasonable Accommodation

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OSHA Ratchets Up Heat-Related Inspections; Expect State Plans Like Nevada To Follow

Under pressure to respond to the risks to employees created by the nationwide heat wave this summer, the U.S. Occupational Safety and Health Administration (OSHA) recently instructed its field enforcement staff, “to expedite…more

Enforcement, OSHA

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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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USCIS Clarifies Eligibility Requirements For STEM OPT Extension

A recent interim policy memorandum, released by the U.S. Citizenship and Immigration Services (USCIS), clarifies the degree completion requirements for the 17-month extension of Optional Practical Training (OPT) available to F-1…more

F-1, Immigrants, STEM, Students, USCIS

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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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What Do Undocumented Workers, Al Capone, and the Jerusalem Cafe Have in Common?

The answer is “nothing really,” but the Eighth Circuit Court of Appeals successfully searched Al Capone’s vault to unearth the comparison in its recent opinion in Lucas v. Jerusalem Cafe, LLC…more

Employee Rights, FLSA, Full-Time Employees, Minimum Wage, NLRA

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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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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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Alabama Heightens Attention on Misclassified Employees

The U.S. Department of Labor continues its “misclassification initiative” by adding Alabama to its list of state partners. On October 2, 2014, Alabama Labor Commissioner Fitzgerald Washington and DOL regional director Wayne…more

DOL, Employee Rights, Employer Liability Issues, Independent Contractors, Misclassification

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OFCCP Issues NEW Compensation Directive and Rescinds Compensation Standards and Voluntary Guidelines

The Office of Federal Contract Compliance Programs (OFCCP) announced today that effective February 28, 2013, it has rescinded the 2006 Compensation Standards (Standards) and Voluntary Guidelines. In the Notice of Final…more

Compensation Standards, Investigations, OFCCP, Title VII, Wages

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Secretary of Labor Hilda Solis Announces Her Resignation

U.S. Department of Labor Secretary Hilda L. Solis announced her resignation in a letter to Department of Labor (DOL) employees on January 9, 2013. Just 12 days before the ceremonial swearing-in of President Barack Obama for a…more

Administrative Appointments, Administrative Resignation, Barack Obama, DOL

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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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Seattle Paid Sick And Safe Leave Ordinance—Employers With Employees Working In Seattle, Are You Ready For The New Seattle Ordinance?

Effective September 1, 2012, most private employers that have employees working within the city of Seattle, Washington will be required to provide such employees specific amounts of paid leave for use for personal illness,…more

Medical Leave, Paid Leave, Safe Leave

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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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Ninth Circuit Finds Police Officer with ADHD Not Disabled Under ADA

Weaving v. City of Hillsboro, No. 12-35726 (August 15, 2014): In a recent decision, the Ninth Circuit Court of Appeals held that a police officer with attention deficit hyperactivity disorder (ADHD) was not disabled under the…more

ADA, Corporate Counsel, Disability, Police

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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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Reminder: NYC Employers Must Provide Pregnancy Accommodation Notices To All Employees by May 30, 2014

As we reported in our September 2013 eAuthority, the New York City Council amended the New York City Human Rights Law, effective January 30, 2014, to expand employee accommodation protection on the basis of pregnancy,…more

Employee Rights, NYCHRL, Pregnancy, Reasonable Accommodation

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Supreme Court Clarifies the Scope of the “Changing Clothes” Exception to the FLSA for Union Employers

On January 27, 2014, the Supreme Court of the United States issued its opinion in Sandifer v. United States Steel Corp., No. 12-417, upholding judgment for the employer under section 203(o) of the Fair Labor Standards Act (FLSA)…more

Collective Bargaining, FLSA, Sandifer v U.S. Steel Corp, SCOTUS, Unions

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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 City Human Rights Law Expanded To Protect Unpaid Interns

On April 15, 2014, New York City Mayor Bill de Blasio expanded protection under the New York City Human Rights Law (NYCHRL) to include unpaid interns. The amendment effectively overturns the U.S. Southern District of New York’s…more

Employer Mandates, New Amendments, NYCHRL, Unpaid Interns

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At Year End, IRS Issues Guidance On Cafeteria Plan Transitional Rules For Windsor

Finally, some guidance on mid-year cafeteria plan changes that many employers have already permitted in the wake of United States v. Windsor. On December 16, 2013, the Internal Revenue Service (IRS) released Notice 2014-1, which…more

Cafeteria Plans, Dependent Care, DOMA, Flexible Spending Accounts, Health Savings Accounts

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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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Are You Paying Home Health Workers Federal Minimum Wage and Overtime? If Not, It’s Time to Start

Traditionally, home health workers who have provided for the care, fellowship, and protection of persons who, because of their advanced age or physical or mental infirmity could not care for themselves, have been exempt from the…more

DOL, Final Rules, FLSA, Home Healthcare Workers, Minimum Wage

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Settlement Highlights Importance of Compliance with Anti-Discrimination Provision of the Immigration and Nationality Act During the Employment Eligibility Verification Process

On August 15, 2014, a California-based staffing company reached a settlement with the U.S. Department of Justice (DOJ), Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), resolving allegations…more

Anti-Discrimination Policies, Compliance, Discrimination, DOJ, Immigrants

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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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WHD Publishes Final Rule Increasing Federal Contractors’ Minimum Wage

On October 7, 2014, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) published its Final Rule establishing standards and procedures to implement Executive Order 13658, entitled “Establishing a Minimum Wage…more

DOL, Employee Rights, Federal Contractors, Minimum Wage, Wage and Hour

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California Appellate Court Rules That California’s Prevailing Wage Laws Do Not Apply to Off-Site Fabrication

On August 27, 2014, the California Court of Appeal issued its decision in the long-anticipated Russ-Will case, Sheet Metal Workers’ International Association, Local 104 v. Duncan; Russ Will Mechanical, Inc., Court of Appeal of…more

Manufacturers, Prevailing Wages, Wage and Hour, Wages

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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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Same-Sex Marriages and Windsor: IRS Issues Notice on Retirement Plan Amendments and Retroactivity

Employers and participants alike have been anxiously waiting for further guidance from the Internal Revenue Service (IRS) on how marriages of same-sex couples will be treated for purposes of qualified retirement plans. On April…more

Employee Rights, Employer Mandates, IRS, Retirement Plan, Same-Sex Marriage

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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 Court Of Appeals Issues New Guidance On Trade Secret Issues

On August 19, 2014, the Tennessee Court of Appeals became the first Tennessee appellate court to address the scope to which Tennessee’s Uniform Trade Secret Act (TUTSA) preempts common law claims related to unfair competition…more

Appeals, Confidential Information, Trade Secrets, Unfair Competition, Uniform Trade Secrets Acts

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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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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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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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New Connecticut Supreme Court Decision Clarifies Application Of The Connecticut Family And Medical Leave Act

On September 25, 2012, the Connecticut Supreme Court held in Velez v. Comm’r of Labor, 306 Conn. 475 (Conn. 2012) that the Connecticut Family and Medical Leave Act (CFMLA) applies only to employers with 75 or more employees…more

FMLA

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Seven Key Supreme Court Cases for Retailers to Watch

The Supreme Court of the United States is ending its summer recess and will start hearing oral arguments next week. There are seven key cases on the Court’s docket for the current term that could affect retailers. Here is a…more

Abercrombie & Fitch, Affirmative Defenses, CASA, Conciliation, Direct Marketing Association

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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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What Happens When The Limitations Provision in the Plan As Applied Creates An Impossible Accrual Date?

Approximately six months ago, the Supreme Court of the United States, in Heimeshoff v. Hartford Life & Accident Insurance Co., 134 S. Ct. 604 (2013), addressed whether an employee benefit plan covered by the Employee Retirement…more

Claims Limitations Period, Disability, Disability Insurance, ERISA, Heimeshoff v. Hartford Life & Accident Insurance Co.

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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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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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New Jersey Governor Christie Signs Ban the Box Law

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act”—also referred to as the “ban the box” law—adding New Jersey to the growing list of states where employers are prohibited…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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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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Hurricane Sandy and Crisis Management

Hurricane Sandy is leaving a wake of destruction in major cities across the East Coast that can have a devastating effect on your business, management, employees, and customers…more

Hurricane Sandy

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Supreme Court Passively Clears the Way for Same-Sex Marriage

On October 6, 2014, the Supreme Court of the United States declined to review all seven same-sex marriage cases with petitions for certiorari pending before it. The Court’s refusal to hear the appeals means that the lower court…more

DOMA, Marriage, Same-Sex Marriage, SCOTUS, US v Windsor

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The Employment Law Authority - May/June 2013

I This Issue: - “Facebook Firing” Ruling Favors Employer - Workplace Strategies Hits New Highs - EEOC Issues Updated Guidance For Specific Disabilities - Genetic Discrimination Suit Settles - Third Circuit Sides…more

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New U.S.-Russia Visa Agreement Facilitates Travel For Business and Tourism

Under the terms of an agreement simplifying the U.S.-Russia bilateral visa program, American and Russian travelers for business or tourism are now eligible to receive three-year, multiple-entry visas authorizing stays for up to…more

Bilateral Visa Program, Business Visas, Visas

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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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Another Increase in the Rhode Island Minimum Wage to $9/Hour

On July 3, 2014, Rhode Island Governor Lincoln Chafee signed into law a measure that will raise the state’s minimum wage to $9.00 per hour, effective January 1, 2015. The legislation, which will increase the state’s minimum wage…more

Corporate Counsel, Employee Rights, Minimum Wage, Wage and Hour, Wages

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California Supreme Court: Undocumented Worker May Recover Lost Wages for Period Up to Employer’s Discovery of Immigration Status

Salas v. Sierra Chemical Co., S196568 (June 26, 2014): On June 26, the California Supreme Court issued a decision holding that federal immigration law does not preempt a California law that extends state law protections to all…more

After-Acquired Evidence, Employer Liability Issues, FEHA, Immigration Records, Lost Wages

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Cap-Subject H-1B Petitions For FY 2015 Should Be Filed On March 31, 2014 To Be Received By USCIS On April 1, 2014

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2015 begins on Tuesday, April 1, 2014. Note that petitions need to be mailed on March 31 to ensure receipt by the…more

Filing Deadlines, H-1B, Immigrants, USCIS, Visas

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New Jersey DOL Clarifies Overtime Exemption For Employees Of Common Carriers Of Passengers By Motor Bus

Under current state law, employees of a common carrier of passengers by motor bus are exempt from overtime. N.J.S.A. 34:11-56a4. However, the term “common carrier of passengers by motor bus” was never defined in the regulations,…more

Common Carriers, Department of Labor & Industry, Exempt-Employees, Over-Time

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Proper Processes Can Insulate Employer From Tortious Act of Employees

Employers occasionally become dejected over the prospects of defending against tort and other civil claims in state courts. However, a recent case out of Houston reaffirms that employers can and do win these kinds of cases when…more

Corporate Counsel, Employer Liability Issues, Employment Policies

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