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Labor & Employment Insights

Perspectives in labor and employment law affecting employers and businesses

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ADA

Supreme Court Limits ADA Claims to Employees and Applicants, Not RetireesBetter Late Than Never? Not in the 5th Circuit: Delayed Action on Accommodation May Be ADA ViolationReady for the Recent Arrival? Pregnant Workers Fairness Act is Here and Kicking

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

Litigate or Arbitrate? Sixth Circuit Decision Looks at Timing of Sexual Harassment ClaimNot 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 Court

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)

OSHA Terminates COVID-19 Emergency Temporary Standard for Healthcare WorkersRecent EEOC Activity and What to Watch ForOut with the Old? Not So Fast! A Quick Review of 2023 Highlights

Deferral

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

DEI

"Supreme Court Shakes Things Up: Reversal of the 'Background Circumstances' Rule Marks Major Legal Shift"What’s the Latest News with DEI?

Department of Labor

No Longer Doubling Down: DOL Will Not Seek Liquidated Damages in Wage Claims Before SuitFederal Layoffs and the Future of Labor Disputes – Understanding the Effects of the Recent Cuts to the Federal Mediation and Conciliation ServiceTrump’s Pick for Chief Legal Officer May Signal More Changes for DOL

Disability Discrimination

Supreme Court Limits ADA Claims to Employees and Applicants, Not RetireesBetter Late Than Never? Not in the 5th Circuit: Delayed Action on Accommodation May Be ADA ViolationUntangling the Web: SDNY Looks at ADA Internet Accommodations

Discrimination

Supreme Court Limits ADA Claims to Employees and Applicants, Not RetireesYes, Menstrual Cramps May Qualify as a Disability Under ADA"Supreme Court Shakes Things Up: Reversal of the 'Background Circumstances' Rule Marks Major Legal Shift"

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

Yes, Menstrual Cramps May Qualify as a Disability Under ADA"Supreme Court Shakes Things Up: Reversal of the 'Background Circumstances' Rule Marks Major Legal Shift"Take it Back – A Federal Court in Texas Vacates Portions of the EEOC’s Sexual Harassment Guidance  

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

Supreme Court Limits ADA Claims to Employees and Applicants, Not RetireesWith 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 Oil

Employer Liability Issues

Supreme Court Limits ADA Claims to Employees and Applicants, Not RetireesNLRB Proclaims the Punishment Arrows in its QuiverWe’re Trying to Help! Employer Guidelines to Avoid Legal Pitfalls with Tuition Assistance Benefit Programs

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

Whistle While You Work: Whistleblowers File More False Claims Act Suits in 2024 Than Ever BeforeThe False Claims Act in 2023: A Government Enforcement UpdateThe False Claims Act in 2022: A Government Enforcement Update

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

No Longer Doubling Down: DOL Will Not Seek Liquidated Damages in Wage Claims Before SuitPass the FLSA Sauce! 5 Employment Law Happenings That May Make You ThankfulThat’s [Mis]Classified: What Employers Must Prove to Claim an FLSA Overtime Exemption

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

Yes, Menstrual Cramps May Qualify as a Disability Under ADANo 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 Case

Gender Identity

Take it Back – A Federal Court in Texas Vacates Portions of the EEOC’s Sexual Harassment Guidance  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

Burn Grooming Policy, Burn? Third Circuit Reignites Bearded Firefighter’s Religious Accommodation and Free Exercise ClaimsCrosstown Traffic! Facts Surrounding Employee’s ADA/FMLA Request to Avoid Bad Traffic Not Enough3 Steps to Figuring Out ADA Reasonable Accommodations for Mental Illness

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

Investigations: Employers Can Avoid Getting in Their Own Way with Some PlanningFor 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 Case

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

Federal Layoffs and the Future of Labor Disputes – Understanding the Effects of the Recent Cuts to the Federal Mediation and Conciliation ServiceTIPS 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 Exemption

Leave

How the Big Beautiful Bill Will Affect Your Big Beautiful WorkplaceIn the Fight Against Noncompete Agreements, Florida Chooses EmployersNew Year, New Leave Laws – Understanding State Leave Law Updates Effective January 1, 2025

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

NLRB's General Counsel Initiatives Trumped: Here We Go Again with Dramatic Shifts in Labor LawTIPS 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 Feeling

NLRB

Trump’s Pick for Chief Legal Officer May Signal More Changes for DOLStill in the Dark After Loper Bright: SCOTUS Declines to Shine a Light on NLRB Deference Post-ChevronNLRB's General Counsel Initiatives Trumped: Here We Go Again with Dramatic Shifts in Labor Law

Noncompete Agreements

In the Fight Against Noncompete Agreements, Florida Chooses EmployersNew Chairman of the FTC: Can You Compete?Pass the FLSA Sauce! 5 Employment Law Happenings That May Make You Thankful

OSHA

OSHA Terminates COVID-19 Emergency Temporary Standard for Healthcare WorkersNo. 10: Unlocking the Secrets of OSHA Inspections Through FOIA RequestsNo. 9 The Particulars on OSHA Violations: How Much Notice is Enough?

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

How the Big Beautiful Bill Will Affect Your Big Beautiful WorkplaceSupreme Court Limits ADA Claims to Employees and Applicants, Not RetireesStill in the Dark After Loper Bright: SCOTUS Declines to Shine a Light on NLRB Deference Post-Chevron

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

Ready for the Recent Arrival? Pregnant Workers Fairness Act is Here and KickingRecent EEOC Activity and What to Watch ForThe Expected Arrival Is Now Here: Pregnancy Fairness Regs Are in Force (Almost Everywhere)

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

Burn Grooming Policy, Burn? Third Circuit Reignites Bearded Firefighter’s Religious Accommodation and Free Exercise ClaimsReady for the Recent Arrival? Pregnant Workers Fairness Act is Here and KickingBlast from the Past: The Potential Ripple Effect of the 'Return to In-Person Work' Executive Order on the Private Sector and Key Considerations for Employers

Religious Discrimination

Burn Grooming Policy, Burn? Third Circuit Reignites Bearded Firefighter’s Religious Accommodation and Free Exercise ClaimsWas 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 Received

Retaliation

Time Was Not on Her Side: 5th Circuit Rules Unpaid Mentor’s Claim of Discrimination Is UntimelyRecent EEOC Activity and What to Watch ForWelcoming Our Robot Overlords? Navigating New Guidance on AI

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

Take it Back – A Federal Court in Texas Vacates Portions of the EEOC’s Sexual Harassment Guidance  Litigate or Arbitrate? Sixth Circuit Decision Looks at Timing of Sexual Harassment ClaimSexual Harassment Is Serious Business: A Reminder from the OFCCP

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

Yes, Menstrual Cramps May Qualify as a Disability Under ADA"Supreme Court Shakes Things Up: Reversal of the 'Background Circumstances' Rule Marks Major Legal Shift"Burn Grooming Policy, Burn? Third Circuit Reignites Bearded Firefighter’s Religious Accommodation and Free Exercise Claims

Training

What to Know About the War Being Waged Against DEISexual Harassment Is Serious Business: A Reminder from the OFCCP11th Circuit Puts to Sleep Florida Anti-Woke Law Prohibiting Certain Workplace Training

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

No Longer Doubling Down: DOL Will Not Seek Liquidated Damages in Wage Claims Before SuitWelcoming Our Robot Overlords? Navigating New Guidance on AIThe ‘New’ New Final Rule? DOL on Independent Contractors and the FLSA

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
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