Topics

ADA

Watch Out, Employers: Using Smart Devices in the Workplace May Not Be So SmartUntangling the Web: SDNY Looks at ADA Internet AccommodationsRecent EEOC Activity and What to Watch For

ADEA

Back to the Basics: Steps to Protect Your Company from Age Discrimination Claims in 2024  

Age Discrimination

Back to the Basics: Steps to Protect Your Company from Age Discrimination Claims in 2024  Consider the Circumstances: What to Expect When You’re Expecting Employees to Return to Work and They Refuse“OK, Boomer” – What Amounts to Actionable Age Discrimination?

Antitrust

Beware Poachers! NY Legislature Takes on “No Rehire” and Employee Poaching IssuesAntitrust Agencies Issue Statement on Enforcement in Essential Provider Labor Markets

Arbitration

Not Interstate? You Must Arbitrate – Third Circuit Rules Uber Drivers Don’t Meet FAA ExceptionWave Goodbye to Waivers Under California’s PAGA? Not So Fast, Says the Supreme CourtSCOTUS Smacks Down “Bespoke” Arbitration-Preferring Rules, Does Away with Prejudice Requirement in Waiver Analysis

Cannabis

2022, Who Were You? A Recap of Hot Issues in 2022.Cannabis Can Dos and Cannots: Employers and Mississippi’s Medical Marijuana LawNow I Know My CBDs – Louisiana Court Favors Employee Terminated for Failing Marijuana Test

Class Action

Wave Goodbye to Waivers Under California’s PAGA? Not So Fast, Says the Supreme CourtYou Can’t Put the Trial Cart Before the Certification Horse in FLSA Hybrid Wage-and-Hour Case; Circuit Court Rejects Trial Court’s Approach of Holding Trial in Wage Case Before Deciding on ClassDon’t Run Prints: Illinois’s Biometric Privacy Law Used Against Employers

COVID-19 (Coronavirus)

Recent EEOC Activity and What to Watch ForOut with the Old? Not So Fast! A Quick Review of 2023 HighlightsDHS Announces New Remote Form I-9 Procedure, New Edition of Form I-9

Deferral

National Labor Relations Board Reverses Another Obama-Era Labor Board Ruling and Reinstates Historical Deferral Doctrine

Department of Labor

Pass the FLSA Sauce! 5 Employment Law Happenings That May Make You ThankfulHappy Workers and Robots? DOL Guidance on AI and Well-BeingChevron Is Dead, but the Department of Labor Still Has Some Gas! 5th Circuit Upholds DOL Salary Requirement

Disability Discrimination

Untangling the Web: SDNY Looks at ADA Internet AccommodationsFreeing the Well-Being: Mental Health Accommodations in the WorkplaceCurse Words and Customer Service: Sixth Circuit Affirms Dismissal of Tourette Syndrome ADA Claim

Discrimination

Watch Out, Employers: Using Smart Devices in the Workplace May Not Be So SmartUntangling the Web: SDNY Looks at ADA Internet AccommodationsDrug Test Woes: State Law Protections for Employee Cannabis Use May Not Protect Them After All

Drug Testing

Drug Test Woes: State Law Protections for Employee Cannabis Use May Not Protect Them After AllCannabis Can Dos and Cannots: Employers and Mississippi’s Medical Marijuana LawMORE Than Meets the Eye? How Federal Marijuana Legalization Legislation Could Affect Employers

EEOC

Watch Out, Employers: Using Smart Devices in the Workplace May Not Be So SmartSexual Harassment Is Serious Business: A Reminder from the OFCCPRecent EEOC Activity and What to Watch For

Employee Benefits

New Year, New Leave Laws – Understanding State Leave Law Updates Effective January 1, 2025We’re Trying to Help! Employer Guidelines to Avoid Legal Pitfalls with Tuition Assistance Benefit ProgramsYou Get Paid Leave! And You Get Paid Leave! USERRA Gets You Paid Military Leave!

Employee Rights

With Election Day Around the Corner, Employers Need to Remember You May Have to Give Employees Time Off to VoteDon’t Fire Me! I’m Drug Free! It Was CBD! Indiana Court Examines Termination for Use of Hemp OilEmployees Miffed by Your Monitoring of Company Devices? Give Notice Now to Hopefully Avoid Annoyance Later

Employer Liability Issues

NLRB Proclaims the Punishment Arrows in its QuiverWe’re Trying to Help! Employer Guidelines to Avoid Legal Pitfalls with Tuition Assistance Benefit ProgramsDon’t Run Prints: Illinois’s Biometric Privacy Law Used Against Employers

Employment Agreements

SCOTUS Smacks Down “Bespoke” Arbitration-Preferring Rules, Does Away with Prejudice Requirement in Waiver AnalysisSix FLSA Resolutions for the New YearCooperate or Pay: Recovering Attorneys’ Fees to Get to Arbitration

Equal Pay

Know Before You Post Take 2: An Update on Pay Transparency and Job PostingsKnow Before You Post: Pay Transparency Laws and Job PostingsAll on Board: Mississippi Joins the Nation in Prohibiting Pay Discrimination Based on Gender

False Claims Act

The False Claims Act in 2023: A Government Enforcement UpdateThe False Claims Act in 2022: A Government Enforcement UpdateThere is an “I” in Whistleblower and Penalties: Individual Employees Played Key Roles in 2021 False Claims Act Cases

Featured

Clarification on Misclassification? Return to Factorization! DOL Issues Proposed Rule on Independent Contractor vs. EmployeeWhen Picket Lines Scratch and Dent: Should Unions Be on the Hook for Property Damage Caused by Strikes?Smile for the Camera! Video Surveillance at Work and State Law Considerations

Federal Contractors

Happy Anniversary! New Guide for the Rehabilitation ActEEO-1s Are Coming!Makin’ New Davis-Bacon (Regs): DOL Issues Final Rule on Prevailing Wages

FFCRA

Coming Back (or Staying Gone) for More: ARPA Extends Tax Credits for Providing COVID-19 LeaveTell Me Again — Do We Have to Give FFCRA Leave in 2021?Good Riddance, 2020! Don’t Let the Door Hit Ya’ On the Way Out…

FLSA

Pass the FLSA Sauce! 5 Employment Law Happenings That May Make You ThankfulThat’s [Mis]Classified: What Employers Must Prove to Claim an FLSA Overtime ExemptionChevron Is Dead, but the Department of Labor Still Has Some Gas! 5th Circuit Upholds DOL Salary Requirement

FMLA

Discouraging Discouragement: In Kemp v. Regeneron Pharmaceuticals, the 2nd Circuit Finds FMLA Violation Without Outright Denial of BenefitsWelcoming Our Robot Overlords? Navigating New Guidance on AIGet Interactive! Searching for ADA Accommodations with Employees

Gender Discrimination

No More Adjectives… Just Some Harm: Supreme Rules on Title VII Job Transfer ThresholdA Different Type of Transfer Portal? Supreme Court Looking at Employment Transfer Discrimination CaseUltimatum on Ultimate Employment Decisions:  Fifth Circuit Expands Standard on Adverse Employment Decisions Under Title VII

Gender Identity

EEOC Locks onto Bostock: New Guidance on Sexual Orientation and Other Gender Issues

Gender Issues

EEOC Locks onto Bostock: New Guidance on Sexual Orientation and Other Gender IssuesPay the Man! (Or Woman)—But Differently? 11th Circuit Reinstates Sex Discrimination Pay ClaimAlabama Employers Take Note – Birmingham Joins Ranks of Cities with an Anti-Discrimination Ordinance

GINA

Voluntarily Sharing Family’s Cancer History Bars GINA Claims, Court HoldsWell, Well, Wellness: DC Court Strikes Down EEOC Rules on Corporate Wellness Programs

Guns at Work

Is That a Gun in Your Pocket… at the Office? New Thoughts on Workplace Concealed CarrySigns, Signs, Everywhere a Sign: What Employers Need to Know About Tennessee’s New Gun Posting LawMore Guns in Trunks---Mississippi Supreme Court Amends Wrongful Discharge Doctrine

Harassment

Workplace Harmony in 2024: Navigating the EEOC’s Latest Harassment GuidelinesGet with the Pronoun: Eleventh Circuit Rules Pervasive Misgendering Is HarassmentAddressing Workplace Harassment: Insights into EEOC’s Proposed Enforcement Guidance

Immigration Law

Preparing for a Future ICE Storm? Steps Employers Can Take to Prepare for Expected Increase in Immigration EnforcementNew Form I-9 Now MandatoryDHS Guidelines Give Protection from Deportation to Undocumented Workers Who Report Labor Violations

Independent Contractors

The ‘New’ New Final Rule? DOL on Independent Contractors and the FLSANot Interstate? You Must Arbitrate – Third Circuit Rules Uber Drivers Don’t Meet FAA ExceptionLocking Tik Tok? White House Requires Removal of TikTok App from Federal IT

Interactive Process

Crosstown Traffic! Facts Surrounding Employee’s ADA/FMLA Request to Avoid Bad Traffic Not Enough3 Steps to Figuring Out ADA Reasonable Accommodations for Mental IllnessPoint for the (Work from) Home Team? Sixth Circuit Says Attendance at Work Not Automatically an Essential Work Function

Interference

The Case of the Breastfeeding Narc: 11th Circuit Confirms Lactating Employee is Covered Under Pregnancy Discrimination ActA Diamond in the Rough (Part 2): What the Eleventh Circuit Said about FMLA Retaliation ClaimsA Diamond in the Rough (Part 1): FMLA Intermittent Leave and Interference Claims Per the Eleventh Circuit

Investigations

For Employers in the #MeToo Era: It’s Not the Harassment Claim, It’s the Retaliation Claim that Gets YouCourt Not So Hostile to Employer in Hostile Work Environment CaseTopple of Estoppel? Eleventh Circuit Deals Blow to Bankruptcy Disclosure Defense in Discrimination Suit

Joint-Employer Liability

Plaintiff Gets Second Serve: 2nd Circuit Clarifies Joint Employer Test and Allows Security Guard to Amend ComplaintThe Relationship Talk: DOL Issues New Rules on Joint Employer StatusMcDonald’s Fries Franchise Workers’ Claims, Lands Whopper of a Ruling for Franchisors

Labor Laws & Rights

TIPS at the Coffee Shop: A Caffeinated Reminder About What Not to Do During Union CampaignsThis Ain’t My Home, Now Pay Up: 11th Circuit Reverses on FLSA’s Live-In Service Worker ExemptionOpen Up the Playbook: NLRB Rules Starbucks Must Produce Document at Hearing or Custodian of the Search

Leave

New Year, New Leave Laws – Understanding State Leave Law Updates Effective January 1, 2025Dust Off That Old Blog Post: Employee Pay When Facing Snow, Ice and Inclement WeatherDiscouraging Discouragement: In Kemp v. Regeneron Pharmaceuticals, the 2nd Circuit Finds FMLA Violation Without Outright Denial of Benefits

Mental Health

Holidays and Happier at Work: Tips for Creating a Mentally Healthy Workplace

Minimum Wage

Silverware Rollers Unite! DOL Proposes New Rule on Use of Tip Credit for Non-tipped WorkLeggo My Eggo and Pass the Legal Advice! Come to Breakfast with Bradley on June 17Don’t Let Your Employee’s “Unpaid” Meal Breaks Turn into a Costly Mistake for You

Minimum Wage

Tipped Out? 5th Circuit Negates DOL Tip Credit RulePoster Rollercoaster: DOL Changes FLSA Notice Required at WorkplacesNew Is Old Again: DOL Seeks Return to Past Rule for Federal Contractor Minimum Wage Calculations

NLRA

TIPS at the Coffee Shop: A Caffeinated Reminder About What Not to Do During Union CampaignsDon’t Stop… Enjoining! NLRB’s GC Wants to Hold Onto That FeelingTry Again NLRB – 5th Circuit Remands Case Back After the Board’s Bait and Switch Move

NLRB

Not Your Grandparents’ Unions: NLRB Sees Large Rise in Organizing PetitionsWhere Are We on Noncompetes? Update on the Federal RoleSpaceX Exploration: Constitutional Challenge to NLRB Structure

Noncompete Agreements

Pass the FLSA Sauce! 5 Employment Law Happenings That May Make You ThankfulWhere Are We on Noncompetes? Update on the Federal RoleCourt Strikes Down FTC’s Noncompete Rule

OSHA

No. 10: Unlocking the Secrets of OSHA Inspections Through FOIA RequestsNo. 9 The Particulars on OSHA Violations: How Much Notice is Enough?No. 8 Employers Have 15 Working Days to Contest a Citation but Have the Option to Negotiate a Settlement with OSHA Before That Deadline

Overtime

Dust Off That Old Blog Post: Employee Pay When Facing Snow, Ice and Inclement WeatherThat’s [Mis]Classified: What Employers Must Prove to Claim an FLSA Overtime ExemptionI Haven’t Been Paying an Employee Correctly! Now What?

Policies

Dust Off That Old Blog Post: Employee Pay When Facing Snow, Ice and Inclement WeatherDrug Test Woes: State Law Protections for Employee Cannabis Use May Not Protect Them After AllPreparing for a Future ICE Storm? Steps Employers Can Take to Prepare for Expected Increase in Immigration Enforcement

Pre-Employment Background Checks

More Box Banning? Trend to Prohibit Questions on Criminal History ContinuesBackground Check Update: There’s A New FCRA Form in TownBackground Checks are Still Big Litigation Business—Just Ask BMW

Pregnancy Discrimination

Recent EEOC Activity and What to Watch ForThe Expected Arrival Is Now Here: Pregnancy Fairness Regs Are in Force (Almost Everywhere)It’s the Final Countdown – The Final PWFA Regs Are Here

Privacy

Smile for the Camera! Video Surveillance at Work and State Law ConsiderationsDon’t Run Prints: Illinois’s Biometric Privacy Law Used Against EmployersPandemic Planning: But What About the Other “P Word” in Your Re-opening Plans? (Hint: It’s Privacy)

Reasonable Accommodations

Recent EEOC Activity and What to Watch ForThe Expected Arrival Is Now Here: Pregnancy Fairness Regs Are in Force (Almost Everywhere)No Dog Days This Summer: In Howard v. City of Sedalia, the Eighth Circuit Clarifies the Scope of Reasonable Accommodations Again

Religious Discrimination

Was There a Rainbow Connection? Arkansas Court Allows Religious Discrimination Case to Go Forward over Apron SymbolYou Have Mail (Better Read It): District Court Finds EEOC 90-Day Deadline Starts When Email ReceivedMandate to Vaccinate? Employers and Required Flu Shots

Retaliation

Recent EEOC Activity and What to Watch ForWelcoming Our Robot Overlords? Navigating New Guidance on AIAre They Qualified? 11th Circuit Further Defines ADA Category

Safety

Dust Off That Old Blog Post: Employee Pay When Facing Snow, Ice and Inclement WeatherTexas Hold ‘Em: Lone Star State Enacts New Notice Law Regarding Workplace ViolenceDon’t Mess with Texas Nurses: Texas Healthcare Facilities Must Adopt Workplace Violence Prevention Plans by September 1, 2024

Sexual Harassment

Sexual Harassment Is Serious Business: A Reminder from the OFCCPWorkplace Harmony in 2024: Navigating the EEOC’s Latest Harassment GuidelinesLegislators Continue to Crack Down on Confidentiality

Social Media

Absolute Freedom to Tweet? Employers (and the NLRA) May Have Something to Say About ItDoes This Arbitration Agreement Make Me Look Sexist? The Moving Target of Using Arbitration ClausesHappy Thanksgiving and the Many Things for Which We Are Thankful

Team Announcement

Happy Thanksgiving and the Many Things for Which We Are ThankfulAnother Shameless Self Promotion: Vote for Labor & Employment Insights as The Best Legal BlogShameless Self-promotion: Please Vote for Labor & Employment Insights in ABA Journal’s Web 100 Ranking

Termination

Illinois Civil Rights Protection Goes High-Tech: Illinois Human Rights Act Expanded to Include AI RegulationU.S. Supreme Court Addresses 10(j) Injunction Standard in NLRB CasePoints Matter: Absenteeism Policy Overcomes Racial Discrimination Allegations in Fifth Circuit

Title VII

Watch Out, Employers: Using Smart Devices in the Workplace May Not Be So SmartRecent EEOC Activity and What to Watch ForSex-Plus X – What’s That? Discrimination

Training

Sexual Harassment Is Serious Business: A Reminder from the OFCCP11th Circuit Puts to Sleep Florida Anti-Woke Law Prohibiting Certain Workplace TrainingStopping “Woke”? Florida HB 7, The Bill That Attempts To Put Florida Employers’ DEI Efforts To Sleep

Uncategorized

You Thought You Were Protected? When a Non-Compete Isn’t Enforceable (Maybe)

Unemployment Benefits

And the Beat Goes On… DOL Publishes Second and Third Round of FAQs on FFCRA Answering Burning Employer QuestionsIs the Wait Finally Over? Senate Passes Massive COVID-19 Relief Bill — How Does It Help Employers?Unemployed Employees: Should Employees Who Have Reduced Hours or Are Laid Off Due to COVID-19 File for Unemployment?

USERRA

To Pay or Not to Pay Military Leave? Ninth Circuit Leaves Jury to Decide USERRA Comparability Analysis

Wage and Hour

Welcoming Our Robot Overlords? Navigating New Guidance on AIThe ‘New’ New Final Rule? DOL on Independent Contractors and the FLSATeaming Up? EEOC and DOL Announce Enhanced Enforcement Efforts

WARN Act

I’m WARNing You… Maybe? Bankruptcy Court Considers Exception to Layoff Notice Statute498, 499, 500! Not So Fast, Says the Sixth Circuit on WARN Act Case

Wellness Programs

We’re Trying to Help! Employer Guidelines to Avoid Legal Pitfalls with Tuition Assistance Benefit ProgramsWell, Well, Wellness: DC Court Strikes Down EEOC Rules on Corporate Wellness ProgramsWhat’s Up With Wellness Programs Anyway?

Whistleblower

2020 Saw Big Pay Days for Whistleblowers and Big Pay Outs for Individual Employees in False Claims Act SuitsThe Whistleblower’s Show Can Go On: Georgia Supreme Court Allows Complaint to Proceed Despite Inconsistent Bankruptcy FilingWhistleblower Activity Drives False Claims Act Suits in 2019

Worker’s Compensation

The Remote (Worker) is Broken! Workers’ Compensation and Stay-at-Home EmployeesCan COVID-19 Claims Convince Commissions to Compensate? An Overview of Workers’ Comp and the CoronavirusEmployee Quits and Then Slips: Covered Under Workers’ Comp or Not?

Workplace Retaliation

From the Tinfoil Hat Files: Plaintiff Sleeping on the Job Claims Sensitivity to Electromagnetic VoltageNeedle and the Damage Done: Pharmacist’s Phobia Not Enough for ADA ClaimWhere Was the Whistle Blown? Split in Circuits over Retaliation Protection for Reporting Securities Violations