Employer Liability Issues

News & Analysis as of

To Be or Not To Be (an Employer) [Video]

Presented by J. Travis Hockaday and Megan P. Black Regulators from a wide variety of government agencies continue to scrutinize relationships between businesses and the people and entities that provide services to them in...more

Union or Not, the NLRB Has Employers (and Their Employee Handbooks) In Its Sights

Here’s something that often comes as a surprise to my clients with a non-union employee base: the NLRA (National Labor Relations Act) likely applies even without any union employees. Yep – you read that...more

Fourth Circuit Court of Appeals Holds Hostile Work Environment Can Be Created With A Single Racial Epithet

Despite consistent direction from the United States Supreme Court that courts should look at "all the circumstances" in determining whether a workplace environment is sufficiently hostile or abusive to give rise to an...more

New York City Employers Prohibited from Using Credit History in Employment Decisions

On April 16, 2015, the New York City Council passed legislation (Int. No. 261-A) prohibiting employers from discriminating against employees and job applicants based on their credit histories. The bill was signed into law by...more

OSHA Announces New Rules for Confined Spaces (Effective August 3, 2015)

On May 4, 2015, the United States Occupational Safety and Health Administration (OSHA) published a new final rule in the Federal Register intended to increase protection for construction workers in confined spaces (e.g.,...more

Transgender Complaints on the Rise: What Should Employers Do?

The President, the EEOC and the Justice Department have announced that gender identity discrimination is prohibited sex discrimination under Title VII. Since these declarations, the number of lawsuits alleging gender identity...more

Transgender and Sexual Orientation Anti-Discrimination Protections — Maybe not yet the Law of the Land, but Your Policies Better...

Though most Americans do not seem to realize it, anti-discrimination legal protections in employment for transgender, gay, bisexual, and lesbian (LGBT) employees are not uniform across the U.S. In fact, the federal Employment...more

Punitive Damages Not Authorized for State Employment Discrimination Claims, Says Court

In yesterday’s post, I talked about the case of Tomick v. UPS in looking at the prima facie case for disability discrimination. But the new Appellate Court case may be even more significant for its discussion of...more

Aching Joints: Franchisor Avoids Liability for Franchisee's Labor Disputes

Any time an employer is involved in a franchise relationship, there are bound to be unique issues when legal disputes arise, particularly in the employment context. It is no longer surprising to see the names of any and all...more

Sticking up for Their Rights: Employers Taking the Offensive

The traditional posture of California employers apprehensive about “gotcha” wage and hour claims is to hunker down and wait for the next lawsuit. But a few brave souls have taken the offensive. We celebrate two examples here....more

Fourth Circuit Joins Other Federal Courts in Broadly Interpreting the Scope of Title VII Retaliation Claims

On May 7, 2015, the Fourth Circuit ruled that an isolated instance of harassment, if "extremely serious," can create a hostile work environment, and that complaining about such harassment constitutes protected activity under...more

Massachusetts Sick Leave Law – Safe Harbor for Employers

The Massachusetts paid sick leave law is scheduled to go into effect on July 1, 2015. A recent client alert provides a summary of the law: Massachusetts Voters Pass Mandatory Paid Sick Time. While regulations have been...more

Fenwick Employment Brief - May 2015

EEOC Conciliation Efforts Subject To Limited Judicial Review - In Mach Mining, LLC v. EEOC, the United States Supreme Court held that the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) are...more

Ah, Social Media: Blurring the Lines Between Work Life and Personal Life

Andy Warhol is quoted as saying, "In the future, everyone will be world-famous for 15 minutes." How prophetic you were Andy. These days a single post on social media can travel around the world faster than you can say Snap...more

California Court Ruling Pulls the Spurs Off PAGA Deputies' Boots

A new California appellate court decision provides much needed guidance regarding the proper scope of discovery in representative actions brought under the California Private Attorneys' General Act of 2004 (PAGA), Cal. Lab....more

Comingling of employee and patient data compromises employer’s HIPAA defense to employee’s claim of discharge for union activity

An administrative law judge (ALJ) of the National Labor Relations Board has concluded that a health care employer’s use of its medical records software to store employee contact information allowed an employee to access that...more

Joint Employer Status for Franchisors Sees Some Reprieve, but not Enough yet for Celebration

We noted last year that, at the behest of its General Counsel Richard Griffin, the National Labor Relations Board was looking to recast the joint employer test under the National Labor Relations Act (NLRA) within the...more

Class Actions over Background Checks Continue

As previously reported in an earlier blog post, retailers are under attack in a wave of class actions alleging violations of the Fair Credit Reporting Act. The allegations are essentially the same in all of these suits: that...more

Timekeeping For Exempt Employees

Should an employer keep records of the time worked by employees who qualify for a federal Fair Labor Standards Act minimum-wage and/or overtime exemption? At the risk of giving the proverbial "lawyer's answer", it depends. Is...more

OSHA Issues New Definition for Whistleblower Activity

In the past several months, we circulated several client alerts relative to a change in the definition of “whistleblower” and what constitutes a protected whistleblowing activity under Section 11(C) of the Occupational Safety...more

Ten Exploration and Production Companies Sued by EEOC for Sex-Based Pay Discrimination

Federal Agency Charges True Oil Entities Paid Female Accounting Clerks Less Than Male Accounting Clerk - CASPER, Wyo. - Ten associated exploration and production companies operating in 12 states violated federal law by...more

Be Like Mike? Enforcing Restrictive Covenants Against Unique Employees

Restrictive covenants, in which an employee agrees for a certain period of time to refrain from working for a competitor or from soliciting away the company’s clients or employees, have become commonplace. Companies in...more

Chief Counsel Memorandum Clarifies IRS Position on Informal 409A Corrections

On May 1, the IRS released a Chief Counsel Memorandum that clarifies the IRS’ position with respect to the correction of deferred compensation arrangements outside of the IRS’ formal Section 409A correction programs....more

Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

The Ontario Ministry of Labour has released its schedule of workplace inspection blitzes for the period from May 2015 to March 2016. The schedule gives employers advance notice of what MOL inspectors will look for when they...more

Being “Qualified” Doesn’t Necessarily Mean Being Able to Perform “Essential Functions” of Job

Back in September 2013, I reported on a seemingly never-ending case of Tomick v. UPS and mentioned that it was headed to its second appeal at the Connecticut Appellate Court. (I talked about the history of the case and the...more

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