Employer Liability Issues

News & Analysis as of

Employer Error in Advising Employee of Eligibility for FMLA Leave Can Have Enduring Consequences

The Family and Medical Leave Act does not require all employers to grant leave to all employees. One condition for eligibility requires an employee to work at, or within 75 miles of, a site at which the employer employs at...more

Jan. 27 At Faruqi Trial: No “Spoliation” Of Blood-Stained Carpet, Judge Says

January 27 at the Marchuk v. Faruqi sexual harassment trial: Judge Alvin Hellerstein has denied Alexandra Marchuk’s request for an adverse inference instruction based on Faruqi’s destruction of the alleged blood-stained...more

The NLRB Issues Key Rulings Regarding Employee E-Mail Use, Deferrals To Arbitration, And Representation-Case Procedures

The 2014/2015 holiday season marked a period of change for the National Labor Relations Board (NLRB). First, on December 11, 2014, the NLRB ruled that under Section 7 of the National Labor Relations Act (NLRA) employees can...more

This Party is BYOD, Part Two

Another pitfall that might arise in a BYOD context pertains to the nature of the information on the device itself. In addition to proprietary information of the company, certain other information is subject to additional...more

Light Up or Leave Me Alone: Medical Marijuana is an Ongoing Challenge for Employers

The 2014 election had four major marijuana ballot initiatives. Recreational legalization initiatives passed in Alaska, Washington State and the District of Columbia. A constitutional amendment in Florida to legalize medical...more

Speakers Only: Governmental Entities Must be Engaged in “Communicative Activity” to Qualify for Anti-SLAPP Protection

On January 22, the Washington Supreme Court decided Henne v. City of Yakima, its first decision interpreting Washington’s anti-SLAPP statute (SLAPP is short for Strategic Lawsuit Against Public Participation). This case has...more

Kmart Will Pay $102,048 to Settle EEOC Disability Discrimination Lawsuit

Major Retailer Refused to Hire Applicant Because Kidney Disease Precluded Urine Sample, Federal Agency Charged - BALTIMORE - Kmart Corporation, a leading national retailer, will pay $102,048 and provide significant...more

NLRB Says Individual Gripes About Wages are "Inherently Concerted" Activity

Many employers consider it appropriate to discourage employees from discussing compensation with their coworkers. Particularly in non-unionized environments, employers may not think twice before disciplining employees for...more

Construction Case Law Update - January 2015

“Reduction in Force” Employment Discrimination by Federal Contractors – “In situations involving a reduction in force, a modified prima facie formulation may apply, which allows a case of discrimination to be established by...more

Employer's Poorly Drafted FMLA Policy Allows Employee to Advance FMLA Claim (That Should Have Never Seen the Light of Day)

If this story won’t cause you bring your FMLA policy up to snuff, then I’ve lost all hope. FMLA’s Basic Premise - An employee is eligible for FMLA leave if he meets three basic criteria: With this backdrop in...more

Jan. 26 at the Faruqi sex harassment trial: NSFW!

PARENTAL ADVISORY: This is testimony in a sexual harassment case, so it’s necessarily NSFW (Not Suitable For Work. Unless you’re an employment lawyer or HR professional, in which case it’s AIADW (All In A Day’s Work).)...more

Diversity Reports at Two Federal Agencies Offer Glimpse of Regulatory Review under Impending Dodd-Frank Diversity Standards

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), signed by President Obama in 2010 in response to the financial crisis, includes a provision intended to remedy racial and gender discrepancies at...more

DOL Challenge Expected to Judge's Decision to Vacate Proposed Caregiver Wage Regulations

On January 14, 2015, U.S. District Court Judge Richard J. Leon, in the District of Columbia, issued an opinion and order in Home Care Association of America v. Weil, Civil Action No. 14-967, vacating a U.S. Department of...more

U.S. Supreme Court Refuses to Hear Iskanian v. CLS Transportation Appeal

Last summer, the California Supreme Court ruled in Iskanian v. CLS Transportation Los Angeles, LLC that the Federal Arbitration Act (FAA) preempted California’s policy against enforcement of class action waivers in...more

Oh, the Weather Outside is Frightful! The Down-and-Dirty on Snowy Days and Employee Pay

An employer asked this morning what the “right way” is to handle weather-related attendance issues that were caused by a severe winter storm in its region....more

High Court Says “Let It Ride”; Limo Company Fails to Flag Down Enough Justices to Hear PAGA Carve-out Case

On January 20, the United States Supreme Court denied certiorari in CLS Transportation Los Angeles LLC v. Iskanian, leaving intact a decision by the California Supreme Court holding that representative Private Attorney...more

The Sixth Circuit Holds That an Arbitration Clause in an Expired Contract Still Applies

Does the duty to arbitrate survive the expiration of a contract? The United States Court of Appeals, Sixth Circuit recently held “yes.” The Sixth Circuit became the first federal appeals court to examine whether a contract’s...more

Breaking Up Is Still So Hard to Do: DOL Clarifies H-1B Bona Fide Termination Rule

Employers must navigate through a maze of complex regulations when seeking H-1B temporary authorization to hire foreign nationals in specialty occupations. Yet, as hard as it is to hire H-1B employees, it can be even more...more

Winter Storms Raise a Blizzard of Questions for Employers

Almost a year ago, a series of winter storms blasted the country, costing billions in damages and business disruption. Yesterday, businesses and residents in the country's Northeast Corridor again braced for what some...more

N.J. Wage and Hour Test: Contractor, Employee Distinction No Longer Relevant

In Hargrove v. Sleepy’s, the New Jersey Supreme Court determined, for the purposes of New Jersey’s wage laws (and overtime), that the so-called “ABC test” (derived from New Jersey’s Employment Compensation Act) would govern...more

Trouble in the Magic Kingdom: Disney Finds Itself the Villain in This Fairytale

Disney is known for its fairytales and happy endings. Usually its adorable characters and feel-good plots earn it wide acclaim. But recently, a California judge agreed with the plaintiff, in Roger L. Culberson II v. The Walt...more

Don’t Sleep on this New Jersey Employers: State Supreme Court Adopts More Stringent Test to Claim Independent Contractor Status

Recently, in Hargrove v. Sleepy’s, LLC, the New Jersey Court issued a unanimous decision raising the bar for New Jersey employers seeking to classify individuals as independent contractors under New Jersey’s Wage Payment Law...more

Winter Storm Juno Expected to Bring Lots of Snow, but Also Potential Wage and Hour Issues

So it’s going to snow a lot today and tomorrow. A lot. A potential blizzard. Some say this could be one of the biggest snowstorms ever to hit the East Coast. More than a foot of snow is expected in Manhattan, up to two...more

ERISA Section 4062(e) Significantly Reformed Effective December 16, 2014

On December 16, 2014, President Obama signed into law the Consolidated and Further Continuing Appropriations Act, which contains provisions that significantly reform ERISA Section 4062(e). The new law is meant to ensure that...more

Litigation Disclosures Can Constitute Title VII Retaliation

Here is something to watch out for. Earlier this month, the U.S Court of Appeals for the Seventh Circuit held that naming an EEOC claimant in the legal proceedings section of a company’s periodic reports may constitute...more

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