An employee writes “whore board” on a company bulletin board — you can fire him, right? Not according to the NLRB and now the federal D.C. Circuit Court of Appeals. In Constellium Rolled Products v. NLRB, the employer’s...more
Let’s say you are tired of your current position and want to try something new with the same employer. You apply for a job transfer, and you are turned down. Then you find out that other people were able to make the move more...more
Given the explosive growth of cannabis products and the increasing number of states that have legalized marijuana for medicinal or adult use (nearly 40 at last count), employers across the country are asking whether they can...more
4/22/2022
/ Americans with Disabilities Act (ADA) ,
Cannabidiol (CBD) oil ,
Cannabis Products ,
Decriminalization of Marijuana ,
Drug Testing ,
Employees ,
Employer Liability Issues ,
Employment Litigation ,
Employment Policies ,
Hiring & Firing ,
Marijuana ,
Medical Marijuana ,
Section 301 ,
State and Local Government ,
Termination
We are all familiar with the phrase “No good deed goes unpunished.” That apparently is the theme of an Eighth Circuit opinion reviewing an employee’s suit alleging that she was improperly denied an accommodation under the...more
In another chapter in litigation alliteration, in Maner v. Dignity Health, f/k/a Catholic Healthcare West, the Ninth Circuit held that a male employee’s theory that his supervisor’s long-term romantic relationship with a...more
9/9/2021
/ Discrimination ,
Employees ,
Employer Liability Issues ,
Employment Litigation ,
Employment Policies ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
Preferred Treatment ,
Retaliation ,
Sex Discrimination ,
Summary Judgment ,
Termination ,
Title VII ,
Workplace Romances
There is a new law for Tennessee employers. As of October 1, 2020, those of you with employees in Tennessee must reasonably accommodate pregnant employees under the state’s new “Pregnant Workers Fairness Act” or else face...more
11/10/2020
/ Americans with Disabilities Act (ADA) ,
Anti-Retaliation Provisions ,
Duty to Accommodate ,
Employer Liability Issues ,
Hiring & Firing ,
New Legislation ,
Pregnancy ,
Pregnancy Discrimination ,
Pregnant Workers Fairness Act ,
Reasonable Accommodation ,
State and Local Government
This week the U.S. Supreme Court ruled that Title VII — the main federal anti-discrimination law on the books — prohibits discrimination against employees who are lesbian, gay, bisexual, and/or transgender (LGBT). The...more
6/16/2020
/ Altitude Express Inc v Zarda ,
Bostock v Clayton County Georgia ,
Civil Rights Act ,
EEOC v RG & GR Harris Funeral Homes ,
Employer Liability Issues ,
Gender Identity ,
Hiring & Firing ,
LGBTQ ,
SCOTUS ,
Sex Discrimination ,
Sexual Orientation ,
Sexual Orientation Discrimination ,
Title VII ,
Transgender
When do your business relationships make you a joint employer? Fortunately, the DOL recently published a Notice of Proposed Rulemaking with changes to regulations regarding when two or more entities should be treated as...more
12/20/2019
/ Department of Labor (DOL) ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Franchisee ,
Franchisors ,
Hiring & Firing ,
Independent Contractors ,
Joint Employers ,
Notice of Proposed Rulemaking (NOPR) ,
Proposed Rules ,
Subcontractors ,
Wage and Hour
What happens if you give an employee an accommodation that goes above and beyond what the ADA requires? Can you change your mind down the road and stop providing that accommodation? Or are you stuck providing that...more
Employers who seek to sponsor foreign workers for cap-subject H-1B visas in 2020 will likely see a big change in the process – the use of an electronic pre-registration system that many believe will improve efficiency and...more
11/15/2019
/ Corporate Counsel ,
Electronic Filing ,
Filing Requirements ,
Foreign Workers ,
H-1B ,
Highly-Skilled Workers Visa ,
Hiring & Firing ,
Immigrants ,
Lottery ,
USCIS ,
Visa Caps ,
Visas
If an employee misses work to attend church on Sunday morning and the company subsequently fires her, is that religious discrimination? A jury in Texas recently said yes and awarded the plaintiff close to $350,000. The...more
Is everything covered by the Americans with Disabilities Act (ADA)? Although we all know the ADA broadly defines the conditions that are protected disabilities, the Seventh Circuit Court of Appeals’ decision in Shell v....more
Add this case to your “Be Sure to Document Your Non-Discriminatory Reasons” file. An employee doing bad things lost on summary judgment in an employment discrimination action, even though she alleged that the company did not...more
11/1/2019
/ ADEA ,
Age Discrimination ,
Appeals ,
Dismissals ,
Employee Misconduct ,
Employer Liability Issues ,
Employment Discrimination ,
Employment Litigation ,
Equal Employment Opportunity Commission (EEOC) ,
Evidence ,
Failure to Investigate ,
Hiring & Firing ,
Summary Judgment
Does a position that a company is holding for an employee out on FMLA leave an “open position” as contemplated by the Americans with Disabilities Act? In Maxwell v. Washington County, a Mississippi federal district court said...more
Do your employees sign arbitration agreements? If so, do your arbitration agreements prevent employees from joining class actions against your company? Does your company want to start requiring arbitration agreements? If...more
9/17/2019
/ Arbitration ,
Arbitration Agreements ,
Class Action Arbitration Waivers ,
Collective Action Waivers ,
Contract Drafting ,
Employer Liability Issues ,
Employment Contract ,
Employment Litigation ,
Former Employee ,
Hiring & Firing ,
Mandatory Arbitration ,
State Labor Laws
If you want to avoid potential liability from a former employee, remember a key maxim: Stick to your story about why you made the employment decision. If an employer shifts rationales for its decision or tries to pile on by...more
9/10/2019
/ Corporate Counsel ,
Employer Liability Issues ,
Employment Litigation ,
Hiring & Firing ,
Human Resources Professionals ,
Jury Trial ,
Motion for Summary Judgment ,
Piling-On ,
Pregnancy Discrimination ,
Retaliation ,
Summary Judgment ,
Termination
The era of #MeToo has caused employers to hyper-focus on harassment claims. They have fine-tuned their policies, investigated claims more carefully, and acted swiftly and sometimes even in a draconian fashion upon finding any...more
Obesity has been recognized as a disease by the American Medical Association, National Institutes of Health, and the World Health Organization. Does that mean obesity qualifies as a physical impairment under the Americans...more
Can you ask a job applicant criminal history? As with so many legal questions, the answer is “it depends” — on where you work, in this case. A recently enacted law will change this answer for Colorado employers beginning as...more
6/12/2019
/ Background Checks ,
Ban the Box ,
Criminal Background Checks ,
Criminal Records ,
Employer Liability Issues ,
Employment Discrimination ,
Hiring & Firing ,
Job Ads ,
Job Applicants ,
New Legislation ,
State Labor Laws
Is discrimination against an employee because of sexual orientation or transgender status a violation of Title VII? The EEOC previously took the position that Title VII covers those statuses but the Trump administration has...more
4/29/2019
/ Altitude Express Inc v Zarda ,
Bostock v Clayton County Georgia ,
Certiorari ,
Civil Rights Act ,
EEOC v RG & GR Harris Funeral Homes ,
Employment Litigation ,
Gender Identity ,
Hiring & Firing ,
LGBTQ ,
SCOTUS ,
Sex Discrimination ,
Sexual Orientation ,
Sexual Orientation Discrimination ,
Title VII ,
Transgender
An employee is on maternity leave and it does not look like she is going to be returning to work. Should you go ahead and terminate her employment during the maternity leave? Wait until it is over to terminate her employment?...more
If you conduct pre-hire background checks, you know you have to comply with the Fair Credit Reporting Act (FCRA) or risk trouble (called lawsuits). Part of that compliance is providing notice to the applicant if you are going...more
10/24/2018
/ Adverse Employment Action ,
Background Checks ,
Comment Period ,
Consumer Financial Protection Bureau (CFPB) ,
Economic Growth Regulatory Relief and Consumer Protection Act ,
Employer Liability Issues ,
Fair Credit Reporting Act (FCRA) ,
Hiring & Firing ,
Identity Theft ,
Job Applicants ,
Notice Requirements ,
Public Comment ,
Summary of Rights
What constitutes a racially hostile work environment? Is one really bad comment specifically aimed at the plaintiff sufficient or do you need a sustained series of racial comments? What if you have both but no evidence that...more
10/4/2018
/ Appeals ,
Corporate Counsel ,
Employer Liability Issues ,
Employment Litigation ,
Hiring & Firing ,
Hostile Environment ,
Performance Reviews ,
Poor Job Performance ,
Race Discrimination ,
Racial Bias ,
Retaliation ,
Summary Judgment
In this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having...more
In setting a new employee’s pay, what do you consider? Past experience? Check. Education? Check. Salary at the last job? Not so fast. In a recent Ninth Circuit decision, the court framed the question as follows:
Can an...more