This week, the federal Occupational Safety and Health Administration began issuing a series of safety alerts aimed at specific industries and their workers’ potential exposure to COVID-19. The first alerts cover the retail,...more
4/28/2020
/ Construction Industry ,
Coronavirus/COVID-19 ,
Corporate Counsel ,
Delivery Drivers ,
Essential Workers ,
Manufacturers ,
Operators of Essential Services ,
OSHA ,
Retailers ,
Safety Standards ,
Workplace Safety
On Tuesday, the National Labor Relations Board published final regulations that make important changes to the way union election campaigns are conducted – and legally challenged by either the union or employer. The most...more
In order to claim discrimination under the Americans with Disabilities Act, employees must demonstrate that they could perform the essential functions of the job but were denied a reasonable accommodation. Some employers...more
3/11/2020
/ Americans with Disabilities Act (ADA) ,
Appeals ,
Corporate Counsel ,
Disability Discrimination ,
Dismissals ,
Employer Liability Issues ,
Employment Litigation ,
Essential Functions ,
Interactive Process ,
Popular ,
Reasonable Accommodation ,
Reversal
Some of the most frequent questions we receive from employers involve managing the performance of employees with medical issues. While employers understand their nondiscrimination obligations under the Americans with...more
3/6/2020
/ Americans with Disabilities Act (ADA) ,
Appeals ,
Best Management Practices ,
Corporate Counsel ,
Disability Discrimination ,
Discipline ,
Dismissals ,
Employer Liability Issues ,
Employment Litigation ,
Poor Job Performance ,
Summary Judgment
Most employers know that the Occupational Safety and Health Administration can assess civil penalties for violation of safety standards. However, they may not be aware that the OSH Act also contains criminal penalties. ...more
In recent years, a number of federal courts have drawn differing conclusions with regard to whether obesity is a protected disability under the Americans with Disabilities Act. While some courts have reached this conclusion,...more
2/12/2020
/ Americans with Disabilities Act (ADA) ,
Appeals ,
Corporate Counsel ,
Disability ,
Disability Discrimination ,
Dismissals ,
Obesity ,
Remand ,
Reversal ,
State and Local Government ,
Summary Judgment ,
WA Supreme Court
On January 1, 2020, a new California law could prevent employers in that state from requiring arbitration of employment claims brought under state law. The new law was prompted by stories revealed as a result of the #MeToo...more
12/13/2019
/ #MeToo ,
Corporate Counsel ,
Employer Liability Issues ,
Employment Litigation ,
Federal Arbitration Act ,
Mandatory Arbitration ,
Mandatory Arbitration Clauses ,
New Legislation ,
Preemption ,
Sexual Harassment ,
State Law Claims
The Affordable Care Act requires that employer-sponsored group medical insurance plans provide contraceptive coverage without cost sharing. Earlier this year, the U.S. Department of Health and Human Services issued final...more
11/13/2019
/ Affordable Care Act ,
Contraceptive Coverage Mandate ,
Corporate Counsel ,
Cost-Sharing ,
Department of Health and Human Services (HHS) ,
Employer Group Health Plans ,
Employer Mandates ,
Final Rules ,
Injunctions ,
Religious Exemption ,
SCOTUS
In 2012 as part of a tax reform bill, Congress directed the Department of Labor to issue regulations that would permit states to condition unemployment insurance benefits for certain recipients on their ability to pass drug...more
In recent years, a number of federal appellant courts, including the Fourth Circuit, have issued opinions finding that a single use of a racial slur can be enough to constitute a hostile and offensive working environment...more
9/6/2019
/ Appeals ,
Corporate Counsel ,
Dismissals ,
Employer Liability Issues ,
Harassment ,
Hiring & Firing ,
Hostile Environment ,
Poor Job Performance ,
Race Discrimination ,
Reaffirmation ,
Safety Violations ,
Slurs ,
Summary Judgment ,
Supervisors ,
Title VII
The National Labor Relations Board continues to provide guidance with respect to employers’ attempts to regulate employee social media behavior. In its Boeing Co. decision, the board made it significantly more difficult for...more
Under the Family and Medical Leave Act, employers cannot penalize employees for use of FMLA leave. Earlier this month, the Sixth Circuit Court of Appeals found that an employer’s resetting of a perfect attendance program...more
8/21/2019
/ Appeals ,
Attendance ,
Corporate Counsel ,
Employee Benefits ,
Employer Liability Issues ,
Employment Litigation ,
Family and Medical Leave Act (FMLA) ,
Medical Leave ,
Paid Leave ,
Reversal ,
Wage and Hour
The ADA Amendments Act of 2008 (ADAAA) substantially lowered the bar for plaintiffs to demonstrate a protected disability under the Americans with Disabilities Act. However, on occasion we still see federal courts reject ADA...more
Under Title VII, employers are vicariously liable for incidents of sexual harassment engaged in by supervisors. In its Faragher and Ellerth decisions, the U.S. Supreme Court acknowledged a limited defense to claims of...more
8/7/2019
/ Corporate Counsel ,
Dismissals ,
Employer Liability Issues ,
Faragher/Ellerth defense ,
Managers ,
Risk Management ,
Sexual Harassment ,
Title VII ,
Vicarious Liability ,
Wal-Mart ,
Workplace Investigations
In employment discrimination cases, when the plaintiff makes out a prima facie claim of bias, the employer must articulate legitimate non-discriminatory reasons for the action. The plaintiff then has the ultimate burden of...more
The National Labor Relations Act guarantees employees the right to engage in protected concerted activity, meaning two or more employees objecting to terms and conditions of employment. Most recent concerted activity cases...more
Employees cannot sue under federal anti-discrimination laws for every perceived slight or workplace occurrence. In order to be actionable, the alleged employer conduct must rise to the level of an “adverse employment action.”...more
On occasion, employers defending lawsuits filed by their employees raise questions over the legal validity of what most attorneys consider to be settled law. A good example comes from a recent decision by the U.S. Court of...more
For employers in North Carolina and South Carolina, perhaps the most important change in their exposure to legal claims from employees has resulted from the appointment of new judges to the Fourth Circuit Court of Appeals who...more
The U.S. Supreme Court has agreed to settle deep divisions between federal appellate courts on the question of whether an employee’s or applicant’s sexual orientation or gender identity are protected under Title VII’s sex...more
Last week, we reported on new proposed Department of Labor regulations that would raise the minimum salary for claiming the “white collar” overtime exemptions to $35,308 per year. In addition to the new salary level, the...more
3/18/2019
/ Comment Period ,
Corporate Counsel ,
Department of Labor (DOL) ,
Exempt-Employees ,
Fair Labor Standards Act (FLSA) ,
Minimum Salary ,
Over-Time ,
Proposed Rules ,
Public Comment ,
Wage and Hour ,
White-Collar Exemptions
Over the past decade, federal courts have gradually reduced the evidentiary burden necessary for a plaintiff to reach a jury trial on claims involving sexual or racial harassment. The relevant legal standard calls for the...more
Most employers know that an employee does not have to ask for Family and Medical Leave by name in order to fall under the FMLA’s protections. At what point, however, does the employee’s disclosure of a medical condition...more
According to the Americans with Disabilities Act, employers may only require employees to submit to medical exams or inquiries when there is a business necessity for determining the employee’s ability to perform the essential...more
2/12/2019
/ Americans with Disabilities Act (ADA) ,
Appeals ,
Corporate Counsel ,
Dismissals ,
Employer Liability Issues ,
Employment Litigation ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
Medical Examinations ,
Reasonable Accommodation ,
Reversal
Job-protected leave continues to be the most common accommodation requested by employees under the Americans with Disabilities Act. For employers, the question remains at what point does the amount of work missed end the...more