It’s not unusual to see an employee terminated or disciplined for workplace harassment to in turn file a charge with the Equal Employment Opportunity Commission, alleging that the employer’s reasons for the move were pretext...more
In recent months, we have had several situations where clients were assessed back wages for overtime relating to misclassification of managerial employees. Under 29 C.F.R. §541.104, employees eligible for the executive...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
When we talk with clients about post-employment “noncompete” agreements, this term actually encompasses a number of different restrictions. In addition to provisions that restrict the employee from working for a competitor...more
In 2012, the Equal Employment Opportunity Commission issued enforcement guidance on employers’ use of criminal background checks in the hiring process. The EEOC concluded that indiscriminate use of such checks has a disparate...more
8/14/2019
/ Administrative Procedure Act ,
Appeals ,
Background Checks ,
Criminal Background Checks ,
Disparate Impact ,
Employer Liability Issues ,
Enforcement Guidance ,
Equal Employment Opportunity Commission (EEOC) ,
Hiring & Firing ,
Injunctions ,
Job Applicants
Here is a scenario we commonly face with clients: A poor-performing employee has not quite reached the point of termination. Just prior to a final decision on her employment, she goes to the Human Resources Department to...more
When we respond to allegations of employment discrimination, reconstructing the timeline of events is crucial. In these situations, the parties often agree what happened (i.e., the employee was terminated). Where they differ...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
When cited for violation of OSHA safety rules, employers can assert an “unpreventable employee misconduct” defense. This defense claims that the employee knew that he or she should safely engage in the work activity, yet...more
North Carolina’s Retaliatory Employment Discrimination Act (REDA) prohibits employers from taking retaliatory action against employees on the basis of workers’ compensation, OSHA, wage and hour, and other state labor law...more
7/22/2019
/ Adverse Employment Action ,
Anti-Retaliation Provisions ,
Appeals ,
Employer Liability Issues ,
Employment Litigation ,
OSHA ,
State Labor Laws ,
Statute of Limitations ,
Summary Judgment ,
Title VII ,
Wage and Hour
Earlier this month, California’s governor signed into law the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act. The new law is the first of its kind in the U.S. Beginning January 1, 2020, it will prohibit...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
In his classic 1998 business book “Who Moved my Cheese?,” Spencer Johnson discussed the need for businesses and employees to focus on the need to adapt to changes in their industries. In our practice, we frequently see claims...more
7/12/2019
/ American Airlines ,
Americans with Disabilities Act (ADA) ,
Employer Liability Issues ,
Employment Litigation ,
Essential Functions ,
Failure to Accommodate ,
Mergers ,
Reasonable Accommodation ,
Summary Judgment ,
Telecommuting ,
US Airways
The #MeToo movement’s efforts to protect employees from unlawful harassment continues to resonate at the state level. In late June, the New York state legislature passed the most expansive sexual harassment prohibitions in...more
Most employers are aware that in order to conduct a third-party background search on an employee or applicant, they must obtain advance authorization and comply with the notice requirements of the federal Fair Credit...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
Successful women have long been the subject of rumors that promotions or other career advancements were the result of their “sleeping their way to the top.” Earlier this month, the Fourth Circuit Court of Appeals (which...more
Over the past decade, EmployNews has chronicled waves of class and collective action litigation based on claims that employees have been misclassified as exempt from the overtime requirements of the Fair Labor Standards Act....more
Last week, we reported on a new Washington state law that will put the nation’s first public long-term care insurance plan into place. On May 8, Washington’s governor signed into law restrictions on use of noncompetition...more
An African-American employee comes into work early one day, with plans to leave earlier than originally scheduled. When he is informed that his vehicle is being serviced and is not immediately available, he blows up at the...more
With the advent of Uber, Lyft, and other so-called “gig economy” jobs, a niche industry has arisen for plaintiffs’ lawyers who file suit against these companies alleging that their workers are misclassified employees. The...more
In recent months, EmployNews has reported on a series of federal appellate decisions dealing with administrative prerequisites for filing lawsuits claiming employment discrimination. Some courts have stated that an EEOC...more
Like most states, North Carolina requires employers to obtain advance written authorization from employees before making deductions from pay that are not otherwise required by law (i.e., taxes). When the exact amount of the...more