If an employee asks for time off to attend a meeting at his or her child’s school, is that covered by FMLA? Maybe not but it depends on the nature of the meeting. If the child is disabled and the school meeting is for the...more
When is sleeping working? According to a recent DOL Opinion Letter, probably not when it occurs off duty in a sleeper berth of an over-the-road truck.
A trucker’s job is to haul a load from Point A to Point B, which often...more
In May, JPMorgan Chase entered into a class action settlement regarding allegations that it treated male employees differently than female employees under the company’s parental leave program. On its face, the terms of the...more
We’ve posted on this topic several times before but the battle between independent contractors and employees continues.
Here’s a brief refresher on the basics of why proper classification of employees as independent...more
6/19/2019
/ ABC Test ,
Department of Labor (DOL) ,
Economic Realities Test ,
Employee Definition ,
Employer Liability Issues ,
Employment Litigation ,
Gig Economy ,
Hiring & Firing ,
Independent Contractors ,
Misclassification ,
NLRA ,
NLRB ,
State Labor Laws ,
Wage and Hour
In a case that garnered big headlines, the Supreme Court weighed in yesterday on whether a claimant’s failure to amend her EEOC charge divests the federal court from hearing part of her Title VII claim. While the decision...more
6/5/2019
/ Affirmative Defenses ,
Amended Complaints ,
Appeals ,
Charge-Filing Preconditions ,
Civil Rights Act ,
Equal Employment Opportunity Commission (EEOC) ,
Forfeiture ,
Fort Bend County Texas v Davis ,
Jurisdictional Requirements ,
Mandatory Claim-Processing Rules ,
Reaffirmation ,
Reasonable Accommodation ,
Religious Discrimination ,
Retaliation ,
Reversal ,
SCOTUS ,
Time-Barred Claims ,
Title VII ,
Waiver Rule ,
Wrongful Termination
Employment law is full of burden-shifting, prima facie standards and evidentiary hurdles. Sometimes, even the courts apply the wrong standard at the wrong stage of a case. That appears to be what happened in the case of...more
5/23/2019
/ Appeals ,
Civil Rights Act ,
Discovery ,
Disparate Treatment ,
Employer Liability Issues ,
Evidentiary Standards ,
Motion to Dismiss ,
National Origin Discrimination ,
Pleading Standards ,
Reversal ,
Summary Judgment ,
Title VII
In light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating...more
In Wittmer v. Phillips 66, Judge James Ho of the Fifth Circuit wasted no time stating the Fifth Circuit’s position on whether sexual orientation or transgender status are protected classes under Title VII – they are not....more
2/15/2019
/ Appeals ,
Gender Identity ,
Hiring & Firing ,
Interviews ,
Job Applicants ,
LGBTQ ,
Misrepresentation ,
Protected Class ,
Sex Discrimination ,
Sexual Orientation ,
Sexual Orientation Discrimination ,
Summary Judgment ,
Title VII ,
Transgender
We all know how much HR professionals LOVE to fill out government-mandated forms. One of the forms at the top of the list is the EEO-1 compliance form that must be filled out by companies that have 100 or more employees or...more
You might have seen all the buzz about the Seventh Circuit’s recent decision in Kleber v. CareFusion Corporation holding that job applicants were not covered by the Age Discrimination in Employment Act (ADEA). Does that mean...more
Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers...more
1/7/2019
/ Americans with Disabilities Act (ADA) ,
Appeals ,
Corporate Counsel ,
Family and Medical Leave Act (FMLA) ,
Hiring & Firing ,
Interactive Process ,
Leave of Absence ,
Mental Health ,
Reasonable Accommodation ,
Retaliation ,
Summary Judgment ,
Traveling Employee
If you see your waiter or waitress grumbling during the holiday season, it could be due to the DOL’s Wage and Hour Division’s revision of the rules dealing with minimum pay due to “tipped” employees. Under the FLSA and...more
12/12/2018
/ Department of Labor (DOL) ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Food Service Workers ,
Hospitality Industry ,
Minimum Wage ,
Regulatory Oversight ,
Restaurant Industry ,
Tip Credit ,
Tipped Employees ,
Tips ,
Wage and Hour
Many employers have progressive discipline policies. Are they always followed? Probably not. Should they be? Absolutely, and Lindeman v. St. Luke’s Hospital of Kansas City, a recent case in the Eighth Circuit, demonstrates...more
Many people chuckled when they read the news story about the woman who attempted to bring her “emotional support squirrel” on a Frontier Airlines Flight early in October. However, it is hard not to notice the proliferation of...more
Employment lawyers and most HR professionals are familiar with the Faragher-Ellerth defense to a claim of sexual harassment. In short, if an employer can show that (1) it exercised reasonable care to prevent and correct...more
9/13/2018
/ Anti-Harassment Policies ,
Appeals ,
Complaint Procedures ,
Corporate Counsel ,
Dismissals ,
Employee Handbooks ,
Employer Liability Issues ,
Failure to Report ,
Faragher/Ellerth defense ,
Gender Discrimination ,
Hiring & Firing ,
Hostile Environment ,
Human Resources Professionals ,
Retaliation ,
Reversal ,
Sexual Harassment ,
Title VII
Can an organist really be considered a church minister? In a detailed and unique opinion, an Illinois federal court applied the First Amendment’s religious clauses to a church employee who claimed he had been discriminated...more
8/7/2018
/ Age Discrimination ,
Employer Liability Issues ,
Employment Discrimination ,
Employment Litigation ,
Evidence ,
First Amendment ,
Hiring & Firing ,
Ministerial Function ,
National Origin Discrimination ,
Religious Institutions ,
Retaliation
New Zealand parliament recently passed a law granting employees 10 days of extra paid leave each year for victims of domestic violence to change their living situations and not lose their jobs. According to some U.S....more
“You have to show up for work—it’s a part of your job.” Attendance at the workplace is an essential work function in an ADA case. But is it really anymore? With technology, some would argue that many jobs can be done from...more
7/20/2018
/ Americans with Disabilities Act (ADA) ,
Attendance ,
Employer Liability Issues ,
Family and Medical Leave Act (FMLA) ,
Full-Time Employees ,
Hiring & Firing ,
Interactive Process ,
Job Descriptions ,
Job Duties ,
Reasonable Accommodation ,
Reversal ,
Sex Discrimination ,
Summary Judgment ,
Work Schedules
Many of us remember the classic scene from “Office Space” where Jennifer Aniston’s waitress character was chastised for not having enough “flair”—whimsical buttons on her uniform. The Fifth Circuit recently addressed the...more
7/11/2018
/ Appeals ,
Employee Rights ,
Employment Policies ,
Fast-Food Industry ,
NLRA ,
NLRB ,
Restaurant Industry ,
Section 7 ,
Unfair Labor Practices ,
Uniforms ,
Unions
When do you have to pay an employee before a shift? In Llorca v. Sheriff (Collier County, Florida), the Eleventh Circuit waded into the rich history of what types of pre-shift activities might qualify for hourly compensation....more
Urine testing—not one of the more popular work activities. However, drug tests are part of safety programs throughout the country. Two recent events—one a court decision and one a potential legislative event—give me the...more
On January 5, 2018, the Department of Labor announced two employer-friendly changes applicable to interns and volunteers. Specifically, the DOL has adopted an employer-friendly approach to internships and has reinstated a...more
1/30/2018
/ Department of Labor (DOL) ,
Employee Definition ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Hiring & Firing ,
Internships ,
Misclassification ,
Primary Beneficiary Test ,
Regulatory Oversight ,
Regulatory Reform ,
Unpaid Interns ,
Volunteers ,
Wage and Hour
If an employee gets a doctor’s note saying she can’t participate in training because of a physical limitation, does that make her disabled? It might if you treat her like she is—at least that is what the Eleventh Circuit...more
1/17/2018
/ Americans with Disabilities Act (ADA) ,
Disability Discrimination ,
Employee Training ,
Employer Liability Issues ,
Gender Discrimination ,
Hiring & Firing ,
Job Descriptions ,
Race Discrimination ,
Reversal ,
Summary Judgment ,
Title VII ,
Unpaid Leave
Determining when an unpaid intern is really an employee has been a moving target for the last several years. However, on January 5, 2018, the Department of Labor announced that its Wage and Hour Division will now use the...more
1/10/2018
/ Department of Labor (DOL) ,
Employee Definition ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Internships ,
Minimum Wage ,
Misclassification ,
Over-Time ,
Primary Beneficiary Test ,
Unpaid Interns ,
Wage and Hour
The Fifth Circuit has issued another opinion in the continuing saga of Jackson State University and its past athletic director, Dr. Vivian Fuller—this one about retaliation against a witness. To refresh everyone’s memory: A...more