Latest Publications


New Lawsuit Claims First Amendment Protections for Political Speech for Employee of Private Sector Company

Every lawyer learns in their first year of law school’s Constitutional Law class that the First Amendment does not shield people from the consequences of their statements. Free speech guarantees only prohibit the government...more

Full Ninth Circuit Says Use of Salary History Violates Equal Pay Act

Over the past several years, a number of states have passed or considered legislation that prohibits employers from using an applicant’s prior salary history when setting incoming pay rates. The legislation is based on a...more

Supreme Court Declines Review of Seventh Circuit ADA Leave Decision

Last year, we reported a Seventh Circuit Court of Appeals decision establishing a rule that leave of more than a few weeks in duration falls outside employers’ reasonable accommodation obligations under the Americans with...more

Ignorance of OSHA Requirements Does Not Preclude Willful Violation

Employers found to have committed repeat or willful violations of Occupational Safety and Health Administration standards are subject to citation penalties of 10 times those for ordinary violations, and in some cases...more

Supreme Court Says Automobile Service Advisors Exempt From FLSA Overtime Requirements

Last Monday in a 5-4 decision, the U.S. Supreme Court held that automotive service advisors fall within the Fair Labor Standards Act’s statutory overtime exemption applicable to car salespersons and mechanics. This decision...more

Why Is It Easier to Fire an Employee Instead of Refusing to Pay Unauthorized Overtime?

We frequently receive questions from employers faced with employees who have worked unauthorized overtime and who demand payment for hours the employer says it neither requested nor needed. The employer asks whether the...more

Multilayer Performance Review Can Help Avoid 'Cat's Paw' Claims

In order to prove disparate treatment discrimination under federal employment laws, plaintiffs must demonstrate that the decision-maker in an adverse action was at least partially motivated by discriminatory intent. Federal...more

Should Employers Change NDAs to Exclude Sexual Harassment Complaints?

Last month, Washington became the first state to adopt a law that prohibits enforcement of confidential information agreements (or NDAs) that prohibit employees from discussing or disclosing sexual harassment issues. The new...more

Wage and Hour Launches Pilot Program for FLSA Self-Corrections

The federal Department of Labor’s Wage and Hour Division recently announced a six-month self-audit pilot program intended to allow employers to review and correct overtime and minimum wage violations. The Payroll Audit...more

2018 Budget Bill Limits Tip Pooling

President Trump has signed into law an omnibus federal budget for fiscal year 2018. Among the bill’s provisions is a compromise intended to end litigation and regulatory uncertainty over employers requiring mandatory tip...more

May Ineligible Employees Claim Rights to FMLA Leave?

The Family and Medical Leave Act does not apply to all employers or even all employees within a covered company. For example, if the employee works at a location with fewer than 50 employees within a 75-mile radius, that...more

Allowing Employee to Use Donated Leave Time Not a Required ADA Accommodation

Some employers use a formal or informal system that allows employees to donate accrued leave time to one another, usually in the context of a serious personal or medical problem. In a recent unpublished decision, the Tenth...more

Employer Not Required to Guarantee Scheduling Preference as Religious Accommodation

Perhaps the most frequently requested religious accommodation under Title VII involves scheduling to avoid working certain times of the week. Employers must consider allowing accommodations to allow employees time away from...more

Telecommuting Deemed Reasonable Accommodation for In-House Attorney

As technology changes, courts have increasingly accepted disabled employees’ arguments that they can remotely perform the essential functions of their jobs. Therefore, telecommuting may be recognized as a form of required...more

Fourth Circuit Rejects Sexual Harassment Claim by Employee Who Quit Days Into Her Investigation

Employers are not strictly liable for hostile environment sexual harassment by a victim’s co-workers. The employer may be held responsible under Title VII if it knew or should have known of the harassment and failed to take...more

Sixth Circuit Says Title VII Protects Transgender Employees

On the heels of last week’s Second Circuit decision finding sexual orientation discrimination prohibited under Title VII, on Wednesday, a Sixth Circuit Court of Appeals panel held that Title VII likewise protects transgender...more

NLRB Vacates Joint Employer Decision Based on Possible Conflict

Earlier this year, EmployNews reported that the National Labor Relations Board had reversed its controversial 2015 Browning-Ferris decision, which set a new standard for joint employer liability for labor law violations. In...more

Ninth Circuit Agrees to Reconsider Tip Credit Case

For employers in the hospitality industry, tipping policies continue to pose significant litigation risks. A number of restaurant groups have faced recent class and collective action claims based on allegations that the...more

Second Circuit Says Title VII Prohibits Sexual Orientation Discrimination

In a major decision, the full Second Circuit Court of Appeals became the second federal appellate circuit to conclude that Title VII’s prohibitions against sex discrimination also apply to discrimination and harassment claims...more

Religious School Does Not Have to Restrict Hiring By Faith to Claim Ministerial Exemption

In its 2012 Hosanna-Tabor decision, the U.S. Supreme Court recognized a “ministerial exemption” to employment claims brought under Title VII and the ADA. The exception allows religious employers to make what otherwise would...more

Get Consent to Access Personal Devices Employees Use for Work

By now, most employers are familiar with “Bring Your Own Device to Work” policies. These policies allow employees to access company information through their own computers, smartphones, tablets, etc. ...more

Unable to Pass Licensing Requirements, Unable to Make ADA Claims

The Americans with Disabilities Act is not an affirmative action law. Employers are not required to waive basic job requirements if the applicant or employee is unable to perform them due to a disabling medical condition....more

For OSHA Purposes, First Circuit Deems Subcontractor Employee of General Contractor

Construction contractors are familiar with the Occupational Safety and Health Administration’s Multi-Employer Worksite rule. Under this rule, a general contractor (GC) can be held liable for safety violations committed by...more

Maine Prohibits Employers From Discrimination Based on Off-Duty Marijuana Use

In 2016, Maine voters approved a referendum that legalizes use of recreational marijuana in the state. Among other things, the referendum prohibits employers from discrimination against employees based on off-duty marijuana...more

Employees Again Sue Jimmy John's Based on Hiring Restriction

A few years ago, the Jimmy John’s sandwich restaurant chain ran into problems over noncompetition agreements entered into with hourly workers at its franchisees’ stores. Several state attorneys general contended that...more

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