Dear Santa,
We all got together and put together our wish-list for your visit. We realize it’s been a fascinating year on the Labor & Employment front. And we don’t want to seem greedy (and end up on the naughty list) in...more
Back in 2012, the EEOC issued BNSF a “Commissioner’s Charge,” saying it would investigate purported ADA violations by the railroad. For several years, BNSF cooperated with the EEOC’s numerous information requests. During...more
In a classic “man bites dog” story, the Florida Senate filed a federal lawsuit against the EEOC. The suit seeks to kill an EEOC charge and administrative hearing alleging that a senator sexually harassed a legislative...more
On April 2, 2015, the EEOC issued a self-congratulatory press release in which it bragged mightily about a $100,000 judgment it just obtained in a discrimination lawsuit. The press release identified the defendant in the...more
The Seventh Circuit recently condoned an EEOC practice that dramatically inhibits the private settlement of employment discrimination lawsuits.
Two Union Pacific employees filed an EEOC charge. The EEOC provided a Notice...more
9/14/2017
/ Civil Rights Act ,
Discrimination ,
Employee Rights ,
Employer Liability Issues ,
Employment Discrimination ,
Employment Litigation ,
Equal Employment Opportunity Commission (EEOC) ,
Harassment ,
Retaliation ,
Right to Sue Letter ,
Title VII
Maximum leave policies are ubiquitous. These policies typically state that an employee who does not/cannot return from leave within a specified period (e.g. 12 months) will be discharged. Last year the EEOC issued...more
An agreement between the UFCW and the Fred Meyer grocery store chain restricted the union’s ability to visit with store employees in public view. But things went south when the UFCW declared war on Fred Meyer. Some eight...more
The NLRB analyzes employer policies to see if the policies “chill” employees’ rights to engage in concerted protected activity under the NLRA. The NLRB says it applies a “reasonable person” test, which asks “would a...more
Wednesday a group of Chipotle employees brought suit in New Jersey federal court alleging FLSA violations stemming from Chipotle’s failure to follow the Obama-era salary-basis regulations. As you will recall, these...more
Wednesday the DOL announced that it was withdrawing two critical pieces of “guidance” issued under the Obama administration. The first piece addressed the DOL’s rather narrow view of who is an independent contractor (S&H...more
6/12/2017
/ Administrative Interpretation ,
Department of Labor (DOL) ,
Employee Definition ,
Employer Liability Issues ,
Gig Economy ,
Independent Contractors ,
Joint Employers ,
Misclassification ,
Regulatory Oversight ,
Staffing Agencies ,
Wage and Hour
Regardless of your political views, most will agree that President Trump’s firing of F.B.I. Director James Comey was fraught with potential controversy. Employers can find at least four takeaways from what was, in short, a...more
You may recall from the Crocodile Dundee movies that Dundee was a big fan of walkabouts in the Australian outback…and Manhattan. A while back OSHA began encouraging walkabouts of a sort....more
Yesterday President Trump signed into law a resolution that officially kills the Obama-era “Blacklisting Rule.” The Rule promised to wreak havoc among federal contractors by requiring certain government contractors and...more
President-Elect Trump continued on his streak of appointing controversial cabinet members today when he announced Andrew Puzder as his choice to head the DOL. Mr. Puzder’s name may be familiar to those of you who crave...more
12/9/2016
/ Administrative Appointments ,
Affordable Care Act ,
Department of Labor (DOL) ,
Fast-Food Industry ,
Immigration Reform ,
Minimum Wage ,
NLRB ,
Over-Time ,
Trade Policy ,
Trump Administration ,
White-Collar Exemptions
Not content to leave employers alone for the last few months of this term, the Administration wants to discourage, nationwide, the use of contract provisions that limit individuals from competing with their former employers,...more
Yesterday a federal court put a temporary hold on the Obama Administration’s so-called Blacklisting Rule. Associated Builders v. Rung. In a previous blog we described in detail the Administration’s Executive Order and...more
10/26/2016
/ Arbitrary and Capricious ,
Blacklist ,
Department of Labor (DOL) ,
Disclosure Requirements ,
Due Process ,
Equal Employment Opportunity Commission (EEOC) ,
Executive Orders ,
Fair Pay and Safe Workplaces ,
Federal Acquisition Regulations (FAR) ,
Federal Arbitration Act ,
Federal Contractors ,
Final Rules ,
Labor Law Violations ,
NLRB ,
Pay Transparency ,
Pre-Dispute Arbitration ,
Preliminary Injunctions ,
Wage and Hour
We have heard an extraordinary amount of commentary about the impending December 1, 2016 deadline for compliance with the new FLSA overtime regulations. One of the most troubling comments that appears to be gaining...more
And so the saga of the runaway NLRB continues. Last Friday, the D.C. Circuit Court of Appeals, widely recognized as our nation’s leader in administrative law, issued a hard-hitting opinion sharply criticizing the NLRB for its...more
The Ninth Circuit Court of Appeals weighed in, today, on the propriety of class action arbitration waivers under the NLRA. The Court held that such waivers violate Sections 7 and 8 of the NLRA in the context of a pending...more
8/23/2016
/ Appeals ,
Arbitration ,
Class Action ,
Class Action Arbitration Waivers ,
Collective Actions ,
Corporate Counsel ,
Ernst & Young ,
Fair Labor Standards Act (FLSA) ,
Federal Arbitration Act ,
Hiring & Firing ,
NLRA ,
Pre-Employment Agreements ,
Protected Concerted Activity ,
Section 7
Last week the SEC entered a cease and desist agreement with BlueLinx Holdings, fining the company $265,000.00 for including unlawful confidentiality and waiver provisions in its severance agreements. BlueLinx used a variety...more
We have repeatedly blogged on the Pushmi-Pullyu world of independent contractor relationships, a world in which employers can do no right. (DOL Says Employers Are Morons) Well, Arizona recently enacted a law providing at...more
Much has been said about AZ Governor Ducey’s recent decision to sign into law HB 2579, which preempts local governments from enacting their own living wage or fringe benefits ordinances for private employers. But next to...more
Yesterday the Fifth Circuit benchslapped the EEOC in a case involving the agency’s criminal history “guidance.” State of Texas v. EEOC, No. 14-10949 (5th Cir. June 27, 2016). We previously blogged about the State of Texas’...more
6/29/2016
/ Appeals ,
Article III ,
Criminal Background Checks ,
Criminal Records ,
Disparate Impact ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
Imminent Harm ,
Legitimate State Interest ,
Regulatory Burden ,
Standing ,
Title VII
Last week the U.S. Supreme Court issued an opinion that refines and re-defines liability for contractors accused of defrauding the Federal Government under the False Claims Act (“FCA”) in Universal Health Services, Inc. v....more
6/23/2016
/ Conditions of Payment ,
False Claims Act (FCA) ,
False Implied Certification Theory ,
Federal Contractors ,
Fraud ,
Implied Certification ,
Material Misrepresentation ,
Materiality ,
Medicaid ,
SCOTUS ,
Universal Health Services Inc v United States ex rel Escobar ,
Unlicensed Medical Providers
On June 20, 2016, the U.S. Supreme Court issued its latest decision (read, “non-decision”) in Encino Motorcars, LLC v. Navarro. The case involves a decades-old question of whether auto dealership “service advisors” are exempt...more