Labor and Employment Law

    • 1 Dec 2015

    Title VII Limitations Period Arguments Held Before U.S. Supreme Court

    WASHINGTON, D.C. — The clock starts ticking in cases brought under Title VII of the Civil Rights Act of 1964 “when the cause of action is complete,” meaning that “a constructive discharge claim is complete only after the employee resigns,” the attorney representing a former U.S. Postal Service (USPS) employee argued Nov. 30 before the U.S. Supreme Court ( Marvin Green v. Megan J. Brennan...
    • 17 Nov 2015

    Four Ways to Prevent Systemic Discrimination in Your Workplace, Before an EEOC Charge

    A week or so ago, Robin Shea had a great post at the Employment and Labor Insider in which she listed ten of the hottest litigation trends at the EEOC. You’ll find some obvious ones (ADA accommodations, retaliation), and maybe one or two that may not be on your radar (immigrant/migrant/”vulnerable” workers). The source of this great list is David Lopez, EEOC General Counsel. Last week, with Mr. Lopez...
    • 16 Nov 2015

    An Injury Without an Injury — Part 2? #SCOTUS and Collective Wage/Hour Violations

    Can a plaintiff support a collective lawsuit if some of the individuals in the purported class have not suffered any harm? The Supreme Court took up this question during yesterday’s oral argument in Tyson Foods v. Bouaphakeo , a case that will go a long way to deciding the continued viability of class or collective actions to decide wage and hour lawsuits. The underlying legal issue is a familiar one: donning...
    • 12 Nov 2015

    Federal Appellate Court in New York Rules That Denying or Reducing Employee’s Discretionary Bonus May Be Unlawful Discrimination

    On October 19, 2015, in Davis v. New York City Department of Education , No. 14-1034-cv, 2015 U.S. App. LEXIS 18115 (2d Cir. Oct. 19, 2015), the U.S. Court of Appeals for the Second Circuit held that “the denial or reduction of a discretionary bonus . . . constitute[s] an adverse employment action,” and thus may serve as the basis for a claim of discrimination under the Americans with Disabilities Act, 42...
    • 11 Nov 2015

    Are No Re-Hire and No Re-Apply Clauses Unlawful?

    I attended the ABA Labor and Employment Law Conference this past weekend. It was my first time, but it will not be my last. It was a great conference! I learned a lot, but one particular issue stuck out for me: Are "no re-hire" and "no re-apply" clauses unlawful? When employers and employees part ways, they often enter into separation agreements. The agreement almost always includes a waiver and release...
    • 11 Nov 2015

    U.S. Supreme Court Hears Oral Arguments in Donning, Doffing Appeal

    WASHINGTON, D.C. — (Mealey’s) A class action is appropriate only when classwide injury may be determined in a single stroke, the attorney representing Tyson Foods Inc. in a donning and doffing dispute argued this morning before the U.S. Supreme Court ( Tyson Foods, Inc. v. Peg Bouaphakeo, et al. , No. 14-1146, U.S. Sup.). Carter G. Phillips of Sidley Austin in Washington, D.C., argued on behalf of Tyson...
    • 10 Nov 2015

    U.S. High Court Considers Equitable Relief In ERISA Reimbursement Dispute

    WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court today heard arguments regarding whether an employee welfare plan’s attempt to recover an alleged overpayment from a participant constitutes permissible “equitable relief” under Employee Retirement Income Security Act Section 502(a)(3), where the participant spent the funds subject to the lien ( Robert Montanile v. Board of Trustees of the...
    • 5 Nov 2015

    Latest Study Indicates Rampant Transgender Discrimination at Work

    On Tuesday, voters in Houston, TX took to the polls and said no to Prop 1 . That’s a ballot measure that would have outlawed discrimination at work against lesbian, gay, bisexual and transgender employees and job applicants. Amanda Terkel at The Huffington Post reports here that, despite having widespread support from local and national politicians and businesses, the measure failed, in large part, because of the...
    • 5 Nov 2015

    OSHA’s Penalties Are on the Rise

    Today’s post (or most of it, anyway) originally appeared on Meyers Roman’s Ohio OSHA Law Blog , but it’s worth reprinting for my readers. Have you subscribed to our new OSHA blog? If not, what are you waiting for? Subscribe by email here , or by RSS here . Earlier this week, President Obama signed into law the Bipartisan Budget Act of 2015 . On its surface, it funds the federal government...
    • 4 Nov 2015

    Workplace Sexual Harassment Prevention

    For the first time in three semesters of teaching employment law at Penn State, I am cancelling class on Thursday. As a result, I recorded a video to address some of the issues we would have covered that day. Here's Intro to Workplace Sexual Harassment Prevention: Intro to Workplace Sexual Harassment Prevention from Philip Miles on Vimeo . I probably should have dressed up a little more . . . . Read additional...
    • 4 Nov 2015

    Privacy Commissioner of Canada's BYOD Guidelines

    I’ve written several posts about BYOD in the past, and continue to believe that for many workplaces, BYOD will be difficult if not impossible to resist. However, it won’t be news to anyone that BYOD raises a full array of privacy and security issues related to the potential blurring and blending of employee personal information and business/customer information on devices. Recently, the Office of the Privacy...
    • 4 Nov 2015

    Court Upholds Employee Firing After Complaining About Gay Slurs. Was That a Mistake?

    Mr. Gaff worked as a custodian at a University. He claimed that, on several occasions, his subordinate called him a “fa***t.” So, Mr. Gaff complained to his supervisor. Then, Mr. Gaff was later fired. Retaliation? Now, back to this case , the one where the plaintiff claims he was unlawfully fired for complaining about gay slurs. Well, in order to have a retaliation claim, a plaintiff first has to show...
    • 4 Nov 2015

    NLRB Provides Employers a Roadmap to a Legally Compliant Off-Duty Access Policy

    Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer? In Marina Del Rey Hosp. (10/22/15) [pdf] [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ], the National Labor...
    • 3 Nov 2015

    Proposed Federal “Ban the Box” Legislation Receives Bipartisan Support

    by Jonathan Sokolowski and Kathleen Simpson* On September 10, 2015, the Fair Chance Act (the “Act”) was introduced by a bipartisan group of legislators from both houses of Congress. The Act would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment. The proposed legislation would allow an employer to conduct a criminal...
    • 3 Nov 2015

    Tweeter's Manifesto

    New article! Tweeter's Manifesto . I explain why I, as a practicing employment lawyer, use Twitter. People from other professions (and certainly other practice areas within law) may find it helpful. The article is part of my presentation at this weekend's ABA Labor and Employment Law Conference . If you're planning to attend the conference, then stop by Room "Washington A" on the 3rd floor at 3:45...
    • 3 Nov 2015

    Employers’ Duty to Help Returning Veterans “Get on the Escalator”

    by Mark G. Jeffries The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer. For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back. Instead, the employer...
    • 3 Nov 2015

    President Obama Wants Federal Agencies to “Ban the Box”

    No more questions about criminal convictions on job applications. Flanked by New Jersey Senator (and former Newark Mayor) Cory Booker (D-NJ), President Obama announced yesterday in Newark, NJ that he would take action to help those with criminal convictions to find jobs. According to a White House Fact Sheet , one of those steps is to “ban the box”: The President has called on Congress to follow a growing...
    • 3 Nov 2015

    An Injury Without an Injury? #SCOTUS, Standing, and the Fair Credit Reporting Act.

    Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins . This case should answer a very important question for employers: Does a plaintiff have standing to bring a lawsuit for a technical violation of the Fair Credit Report Act if the individual suffered no resulting concrete harm? The implications of this case are huge. Over the past few years, the number of FCRA class-action lawsuit has increased...
    • 2 Nov 2015

    Beware the Trojan Horse of "Rewards" With Noncompetes

    Your boss and HR deliver the great news: the company loves and appreciates you. It wants to reward you. Maybe they're "giving" you a retention bonus, stock, options, or some other reward that sounds like a heap of money for free. But beware. It may be a Trojan Horse. If it sounds too good to be true, it could be really, really bad. Lately, I'm seeing more and more so-called "rewards" coupled...
    • 2 Nov 2015

    Court Invalidates Class Action Waiver Where Arbitration Agreement Not Governed by FAA

    Earlier this week, a California Court of Appeal issued its published opinion in Garrido v. Air Liquide Industrial U.S ., holding that a class action waiver in an employment arbitration agreement was unconscionable and unenforceable. You're thinking, "Wait, I thought the California Supreme Court ruled in Iskanian that class action waivers are enforceable." Well, you are right, but this court found a way around...
    • 2 Nov 2015

    EEOC Issues Proposed GINA Rule for Wellness Programs

    On Friday, the EEOC "issued a Notice of Proposed Rulemaking (NPRM) to amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) as they relate to employer wellness programs that are part of group health plans." Per the press release : EEOC's proposed rule addresses the extent to which an employer may offer incentives for an employee's spouse to provide...
    • 30 Oct 2015

    Poll: Your Workplace Prolly Won’t Survive a Walking Dead Zombie Apocalypse

    I realize that a post like this has more of a Tuesday feel to it, but, I just couldn’t resist… Leave it to Career Builder to issue a press release , “Could Your City Survive a Zombie Apocalypse? CareerBuilder and EMSI Reveal the Metros Most and Least Likely to Withstand the Walking Dead.” At the risk of receiving a flurry of unsubscribe requests by revealing The Walking Dead spoilers, I’ll...
    • 30 Oct 2015

    It’s Not Illegal to Give a Negative Job Reference, But…

    When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you? (a) Ignore it. (b) Confirm only the fact of prior employment and dates. (c) Give a truthful, negative reference. Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they...
    • 30 Oct 2015

    Straight From the Source: EEOC’s 10 Hottest Litigation Trends

    Last week I heard David Lopez, General Counsel of the Equal Employment Opportunity Commission, speak about EEOC litigation developments at the annual North Carolina/South Carolina Labor and Employment Law conference. The EEOC has been litigating like a house afire, so I knew you would want to hear what he had to say. Mr. Lopez – who reads this blog and likes it! – gave me permission to blog about his presentation...
    • 28 Oct 2015

    Paid Sick Leave Expansion Continues – This Time to Federal Contracting

    by Joseph U. Leonoro Last month, on Labor Day, President Obama signed an Executive Order establishing paid sick leave for federal contractors. The Executive Order will apply to employees working on federal government contracts that are solicited or awarded on or after January 1, 2017. Once the Order takes effect, all employees – both full-time and part-time – performing work on a covered contract or...