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Labor & Employment Insights

Perspectives in labor and employment law affecting employers and businesses

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ADA

Interpretation of an Interpreter Request? 11th Circuit Weighs in on Accommodation of Deaf EmployeeAI, AI, Uh-Oh! Can Artificial Intelligence Programs Put You at Risk for Discrimination Lawsuits?Bueller? Bueller? EEOC Examining Attendance Policies for ADA Violations

Age Discrimination

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?Deep Impact – 7th Circuit Holds that Disparate Impact Claims for Job Applicants Not Covered by ADEA

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)

DHS Announces New Remote Form I-9 Procedure, New Edition of Form I-9Vax Requirement Sacked in TN: Medicare Providers Lose Exemption from COVID-19 LawsSmucker’s Out of a Jam: Sixth Circuit Says Being a Federal Contractor Does Not Make You a State Actor

Deferral

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

Department of Labor

Teaming Up? EEOC and DOL Announce Enhanced Enforcement EffortsLabor Forecast Following a Summer of StrikesDéjà Vu All Over Again? DOL Proposes New Rule on Salaried Exemption Threshold

Disability Discrimination

Brain Tumor: A Little Too Little, Too Late -- Sixth Circuit Addresses Late Disclosure of DisabilityNo Dogs Allowed: Federal Court Rejects Service Dog Accommodation in Hospital SettingAvoid the Naughty List: Eighth Circuit Insight into Handling Requests for Reasonable Accommodations under the ADA

Discrimination

Ultimatum on Ultimate Employment Decisions:  Fifth Circuit Expands Standard on Adverse Employment Decisions Under Title VIIPlease DO Stop the Music: Ninth Circuit Rules Offensive Tunes Can Constitute a Hostile WorkplaceAI, AI, Uh-Oh! Can Artificial Intelligence Programs Put You at Risk for Discrimination Lawsuits?

Drug Testing

Cannabis Can Dos and Cannots: Employers and Mississippi’s Medical Marijuana LawMORE Than Meets the Eye? How Federal Marijuana Legalization Legislation Could Affect EmployersDon’t Fire Me! I’m Drug Free! It Was CBD! Indiana Court Examines Termination for Use of Hemp Oil

EEOC

Teaming Up? EEOC and DOL Announce Enhanced Enforcement EffortsEEO-1s Are Coming!Déjà Vu All Over Again? DOL Proposes New Rule on Salaried Exemption Threshold

Employee Benefits

We’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!We Got the PPP Loan -- What Do We Do Now?

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: Pay Transparency Laws and Job PostingsAll on Board: Mississippi Joins the Nation in Prohibiting Pay Discrimination Based on GenderShould I Stay or Should I Go? Ninth Circuit Finds Gender Discrimination in Retention Raise

False Claims Act

The 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 Cases2020 Saw Big Pay Days for Whistleblowers and Big Pay Outs for Individual Employees in False Claims Act Suits

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

EEO-1s Are Coming!Makin’ New Davis-Bacon (Regs): DOL Issues Final Rule on Prevailing WagesSmucker’s Out of a Jam: Sixth Circuit Says Being a Federal Contractor Does Not Make You a State Actor

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

Déjà Vu All Over Again? DOL Proposes New Rule on Salaried Exemption ThresholdPoster Rollercoaster: DOL Changes FLSA Notice Required at WorkplacesDOL Guidance Provides “FAB”ulous Insight as to How the Agency Will Apply the Protections under the FLSA and FMLA to Remote Workers

FMLA

Teaming Up? EEOC and DOL Announce Enhanced Enforcement EffortsHoliday Road! DOL Weighs in on Tracking FMLA Time Against HolidaysBueller? Bueller? EEOC Examining Attendance Policies for ADA Violations

Gender Discrimination

Ultimatum on Ultimate Employment Decisions:  Fifth Circuit Expands Standard on Adverse Employment Decisions Under Title VIIWeekends Revisited? Fifth Circuit Re-examines Gender-Specific Scheduling DecisionFailing to Cite? Say Bye to Employment Claims in the 5th Circuit

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

Signs, 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 DoctrineHold Your Fire: Tennessee Bars Employers from Terminating Employees for Complying with 'Guns-in-Trunks'

Harassment

Please DO Stop the Music: Ninth Circuit Rules Offensive Tunes Can Constitute a Hostile WorkplaceHappy Thanksgiving! 7 Things for Which We Are Thankful – 2020 EditionThe NLRA, Protected Activity, and the F-Bomb

Immigration Law

DHS Guidelines Give Protection from Deportation to Undocumented Workers Who Report Labor ViolationsUnDACAmented: Protections for Dreamers in PerilExtending the Flex: I-9 Rule on Remote Employees Allowed to Continue

Independent Contractors

Not 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 ITHappy Thanksgiving and the Many Things for Which We Are Thankful – 2022 Edition

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

Labor Forecast Following a Summer of StrikesTeach, Hit the Lab, Grade Some Papers and… Unionize? NLRB Rules That Private University Graduate Students Can UnionizeNLRB Proclaims the Punishment Arrows in its Quiver

Leave

Holiday Road! DOL Weighs in on Tracking FMLA Time Against HolidaysTo Pay or Not to Pay Military Leave? Ninth Circuit Leaves Jury to Decide USERRA Comparability AnalysisWith Election Day Around the Corner, Employers Need to Remember You May Have to Give Employees Time Off to Vote

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

Poster Rollercoaster: DOL Changes FLSA Notice Required at WorkplacesNew Is Old Again: DOL Seeks Return to Past Rule for Federal Contractor Minimum Wage CalculationsEveryone Loves a Good Deadline: Reporting Requirements for Early 2022

NLRA

Teach, Hit the Lab, Grade Some Papers and… Unionize? NLRB Rules That Private University Graduate Students Can UnionizeNoncompetes Back in the Crosshairs: NLRB Takes Its Shot at Noncompetition AgreementsWhen Picket Lines Scratch and Dent: Should Unions Be on the Hook for Property Damage Caused by Strikes?

NLRB

Labor Board Maintains Course with Pro-union AgendaTeach, Hit the Lab, Grade Some Papers and… Unionize? NLRB Rules That Private University Graduate Students Can UnionizeNoncompetes Back in the Crosshairs: NLRB Takes Its Shot at Noncompetition Agreements

Noncompete Agreements

Labor Board Maintains Course with Pro-union AgendaSign on the Line: Alabama Supreme Court Requires Employer Signatures on Non-competesNoncompetes Back in the Crosshairs: NLRB Takes Its Shot at Noncompetition Agreements

OSHA

Keeping Workers Safe in The Dome: Update on OSHA’s Heat Hazard InitiativeHappy Thanksgiving and the Many Things for Which We Are Thankful – 2022 EditionMandate, We Hardly Knew You: OSHA Withdraws Large Employer Vaccine Standard

Overtime

Déjà Vu All Over Again? DOL Proposes New Rule on Salaried Exemption ThresholdOT on the QT? Bama’s Tax Exemption for OvertimePoster Rollercoaster: DOL Changes FLSA Notice Required at Workplaces

Policies

EEO-1s Are Coming!Déjà Vu All Over Again? DOL Proposes New Rule on Salaried Exemption ThresholdBueller? Bueller? EEOC Examining Attendance Policies for ADA Violations

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

Extra, Extra, Read All About the PWFA RegsReady, Set, Go – It’s Time for the PWFAReview and Revise: Prepare for PWFA’s June 27 Effective Date

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

Extra, Extra, Read All About the PWFA RegsReady, Set, Go – It’s Time for the PWFAReview and Revise: Prepare for PWFA’s June 27 Effective Date

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

Ultimatum on Ultimate Employment Decisions:  Fifth Circuit Expands Standard on Adverse Employment Decisions Under Title VIIMakin’ New Davis-Bacon (Regs): DOL Issues Final Rule on Prevailing WagesDon’t Drop a Vein: Sixth Circuit Affirms Dismissal of Surgical Assistant’s Age Suit

Safety

Eyeing Ian—Obligations to Employees Under Severe Weather ConditionsWhat’s Your Vax Status? New Requirements for Federal Employees and ContractorsOSHA Stand Down for Stand Up Safe Employers — Good Tips on Falls

Sexual Harassment

Legislators Continue to Crack Down on ConfidentialityBlocking the Gate to Arbitrate: Congress Passes Law Banning Pre-Dispute Arbitration Agreements on Sex Harassment ClaimsSunday May Still Be Sacred: Texas Jury Sides with Employee Who Chose Church Service Over Work

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

Ultimatum on Ultimate Employment Decisions:  Fifth Circuit Expands Standard on Adverse Employment Decisions Under Title VIIBueller? Bueller? EEOC Examining Attendance Policies for ADA ViolationsBrain Tumor: A Little Too Little, Too Late -- Sixth Circuit Addresses Late Disclosure of Disability

Title VII

Teaming Up? EEOC and DOL Announce Enhanced Enforcement EffortsUltimatum on Ultimate Employment Decisions:  Fifth Circuit Expands Standard on Adverse Employment Decisions Under Title VIIExtra, Extra, Read All About the PWFA Regs

Training

Stopping “Woke”? Florida HB 7, The Bill That Attempts To Put Florida Employers’ DEI Efforts To SleepEssential COVID-19 Tips for Those Essentially Essential: DOL Launches New Wage and Hour Program for Essential WorkersRevamping Your Anti-Harassment Programs

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

Teaming Up? EEOC and DOL Announce Enhanced Enforcement EffortsMakin’ New Davis-Bacon (Regs): DOL Issues Final Rule on Prevailing WagesAre Your Employees Covered by a State Paid Family and Medical Leave Program? The CRS Can Tell You If They Are

WARN Act

498, 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 Safety

To Mandate Vax or Not, That Is the Question: Federal Contractor Vaccine Mandates Before Several Appellate CourtsOSHA Stand Down for Stand Up Safe Employers — Good Tips on FallsPandemic Planning: But What About the Other “P Word” in Your Re-opening Plans? (Hint: It’s Privacy)

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
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