Labor and Employment Law

    • 28 Oct 2015

    Did You Hear the One About the HR Manager Who’d Never Heard of Title VII?

    The bottom of the first page of this recent federal court opinion in EEOC v. Star Transport, Inc. really grabbed my attention: In December 2008 or January 2009, Edward Briggs became Star Transport’s Human Resources Manager. He received no training on anti-discrimination laws, was not aware of any exceptions to the “at will” employment policy, had never heard of Title VII, and had no understanding...
    • 28 Oct 2015

    Illustrating the Importance of Training Your Employees on the ADA

    By now you’ve likely heard the story about the blind college student denied service by a Cleveland-area bakery because she was accompanied by her seeing-eye dog. Rather than vilify this establishment (which, god knows, has been done enough on Facebook , and Yelp , and just about everywhere else on the Internet), we should instead use this mistake as a teachable moment for all employers everywhere. The Americans...
    • 28 Oct 2015

    New Jersey Supreme Court Holds That an Employer Can Sue a Disloyal Employee To Clawback Salary Without Showing Economic Loss

    by Jonathan Sokolowski In Kaye v. Rosefielde (A-93-13), the New Jersey Supreme Court recently held that an employer need not demonstrate that it suffered an economic loss in order to recoup the salary of a disloyal employee [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. The Court explained that courts have the equitable power to require disgorgement for any pay periods during...
    • 28 Oct 2015

    Pennsylvania Supreme Court on Knowledge Requirement for Unfair Labor Practice

    On Tuesday, the Supreme Court of Pennsylvania (aka SCOPA) issued an interesting Public Employe Relations Act (PERA) opinion - Lancaster County v. PLRB [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. It's a fairly complex case with a 42-page opinion, but one holding is pretty straightforward, so let's focus on that. Generally, PERA prohibits employers from retaliating...
    • 27 Oct 2015

    Employee Misclassification Continues to Make News

    by Michael Marr Just last month, GrubHub, DoorDash, and Caviar were sued in San Francisco Superior Court in lawsuits similar to those pending cases against Uber and Lyft. These three new lawsuits ask the hot-button question: are workers in the shared economy employees improperly classified as independent contractors? If the current individuals working for these three shared economy companies are classified as employees...
    • 27 Oct 2015

    Are Paralegals Entitled to Overtime Under the FLSA? Probably.

    Last Friday, I had the honor and privilege of presenting at the Philadelphia Association of Paralegals’ Education Conference . The class was essentially a primer on the basics of employment law, during which I emphasized both the types of claims on which paralegals may assist clients, and the employment-law issues that the audience may encounter for themselves at work. We explored discrimination, disability accommodations...
    • 26 Oct 2015

    Employers Might Not “Like” This Protected Concerted Activity Decision

    Does the National Labor Relations Act protect the mere act of an employee clicking the “Like” button on Facebook? According to Triple D, LLC v. NLRB (2nd Cir. 10/21/15) [pdf] , the answer is yes [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. The case involved the following Facebook post by a former employee of a sports bar, complaining about some incorrect income...
    • 26 Oct 2015

    OFCCP Issues Final Rule Implementing Executive Order 13665

    by Jana P. Grimm On April 8, 2014, President Obama signed Executive Order 13665, amending section 202 of Executive Order 11246 which had previously prohibited employment discrimination by federal contractors based on race, color, religion, sex, sexual orientation, gender identity, and national origin. Executive Order 13665 added further protection for an employee’s or applicant’s inquiries, discussions...
    • 26 Oct 2015

    What Are the Elements of a New Jersey Conscientious Employee Protection Act Claim?

    The New Jersey Conscientious Employee Protection Act, N.J.S.A. §§ 34:19-1 – 34:19-8 (“NJ CEPA”), prohibits all public and private employers from retaliating against employees who disclose, object to, or refuse to participate in certain actions that the employees reasonably believe are either illegal or in violation of public policy. More particularly, the New Jersey Conscientious Employee...
    • 26 Oct 2015

    When Will The Exemption Changes Occur?

    by John E. Thompson One of the most-pressing questions for employers at the moment is when the U.S. Labor Department will finalize changes in its definitions of the federal Fair Labor Standards Act's Section 13(a)(1) exemptions. Some have recently suggested that final regulations will be released late next summer. We are not at all convinced that they will be so long in coming. Factors To Consider A common view...
    • 23 Oct 2015

    Let’s Revisit That Post About Cursing Out Your Boss on Facebook

    Last year, at about this time, I blogged here about a case involving some employees who thought that their employer had underpaid them. So, they discussed the matter at work. And then continued their conversation on Facebook, where they used language that wouldn’t quite make an Eagles fan in the 700 level of old Veteran’s Stadium blush. But, it would have earned a young Meyer some soap in the mouth. Cursing...
    • 23 Oct 2015

    Don’t Call the Whole Thing Off When Negotiating IP Rights With Employees

    Tomaydo-Tomahhdo is a local sandwich shop, and a purveyor of damn fine paninis and wraps. As for litigation, let’s say its lunches are way better. It sued one of its former chefs, claiming that he stole its book of recipes to open a competing catering business. Ultimately, the restaurant lost its lawsuit, which it had framed as a copyright infringement claim. The court concluded [pdf] that there is nothing original...
    • 22 Oct 2015

    How Discrimination Can Kill You

    Pretty much every day I fight employers who don't take discrimination seriously. HR people and management tend to think people who complain about discrimination are poor performing whiners. But discrimination is real, and it really happens in the workplace. Not only can discrimination cost you money in lost wages and benefits, but now there are some studies saying discrimination can damage your health or even kill...
    • 22 Oct 2015

    The Scope of Discovery is Changing!

    The Pennsylvania Bar Institute (PBI - famous for their "yellow books" in these parts) contacted me to update a chapter I had previously contributed to their Taking and Defending Depositions coursebook - seminar coming soon to Philly , Pittsburgh , and Mechanicsburg (sadly, I cannot participate in the actual seminar, but I'll be there in book form!). "No problem!" I said. After all, how much can...
    • 22 Oct 2015

    Be Sure Your Holiday Season at Work Starts Out With a Treat and Not a Trick

    by Kaitlin L. Hillenbrand As we transition from summer picnic season to fall/winter party season, you may be inclined to hold a gathering for your employees. After all, you appreciate them and want to show your thanks by showing them a generous, good time. However, too much of a good time at these functions can cause put employers in a sticky legal situation, so it’s a good idea to keep a few tips in mind as...
    • 21 Oct 2015

    Keep Your Insensitive FMLA Comments to Yourself. You Too, HR.

    I’ve heard the Family and Medical Leave Act referred to as the “Friday/Monday Leave Act.” Heck, I called it the Friday/Monday Leave Act last week. Turns out, I need to watch what I say. A “get out of jail free card.” In Deka v. Countrywide Association For People with Disabilities, Inc. (opinion here ), a few of the defendant’s highest ranking officials; namely, its Executive Director...
    • 21 Oct 2015

    The Other Side of the Coin on the Appropriate Response to Harassment

    Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace. The allegations of sexual harassment in Ellis v. Jungle Jim’s Market (Ohio Ct. App. 10/13/15) [pdf] are pretty egregious...
    • 21 Oct 2015

    The Lessons of EEOC v. Freeman – “Know When to Hold ’Em. Know When to Fold ’Em.”

    I was going to skip past this opinion from the District of Maryland until I realized that it started with a reference to a classic country song and, therefore, it immediately moved up my list and became worthy of a closer read. World-renowned poker expert Kenny Rogers once sagely advised, “You’ve got to know when to hold ’em. Know when to fold ’em. Know when to walk away.” In the EEOC...
    • 16 Oct 2015

    California’s DLSE Issues Updated FAQ on Paid Sick Leave

    As California employers know, California enacted a paid sick leave law that took effect this year and required that employees start accruing paid sick leave July 1, 2015. Later in July, California’s Governor signed urgency legislation amending the paid sick leave law. Those amendments did not change a whole lot, but did make some changes, including (1) a change to the rate of pay for use of sick leave by non-exempt...
    • 15 Oct 2015

    Voting Laws for Canadian Employees

    While Canadian readers are no doubt aware that we have a federal election coming up, for those who might not be following Canadian politics, a federal election has been called and voting will take place on Monday October 19, 2015. Fun Facts for American readers • Canada is a different country than the United States of America, and we can elect our very own leaders; • Steven Harper is Canada’s...
    • 15 Oct 2015

    Meyer on How Lawyers Can Effectively Market Themselves Through Social Media

    My kids know me as dad. You folks; however, know me as a blogging all-star , one of the lawyers who’s killing it on Twitter , and an all-around social-media dynamo. *** you can stop clapping now *** While you’ll probably never catch my social media star, if you’ve been thinking about dipping your toe into the social media pool to market your practice, check out my recent interview — because...
    • 15 Oct 2015

    Compensable Working Time : FLSA :: Disability : Pre-2009 ADA

    Think back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”? Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this: Compensable...
    • 15 Oct 2015

    OSHA Encourages Nationwide Adoption of “Early Resolution” ADR in Whistleblower Cases

    On August 18, 2015, the Occupational Safety and Health Administration released a directive to its regional offices to adopt “early resolution” alternative dispute resolution in whistleblower cases. The directive follows a successful pilot program by OSHA in its Chicago and San Francisco regions. From October 1, 2012, to September 30, 2013, OSHA ran a pilot ADR program in regions V (Chicago) and IX (San...
    • 14 Oct 2015

    Second Circuit Finds EEOC Investigation Not Subject to Review

    by Sean Kirby Recently, the United States Court of Appeals for the Second Circuit held in the matter of Equal Employment Opportunity Commission (“EEOC”) v. Sterling Jewelers Inc. (“Sterling Jewelers”) , that the District Court erred by considering the sufficiency of the EEOC’s pre-suit investigation instead of simply considering whether an investigation occurred [subscribers can access...
    • 14 Oct 2015

    Over the Next Three to Six Years, New York Raises the Minimum Wage for Fast Food Workers to $15.00 Per Hour

    On September 10, 2015, acting New York State Commissioner of Labor Mario J. Musolino signed an order (the “Wage Order” or the “Order”) which (1), over a period of three years, raises New York City’s minimum wage for fast food employees from $8.75 per hour to $15.00 per hour and (2) over a period of six years, increases the minimum wage for fast food workers in the remainder of New York State...