The Modern Workplace
The landscape of federal military leave law may be shifting. In the past three years, four federal appellate courts have held that an employer may be required to offer paid leave for an employee’s military service where the leave is comparable to paid leave offered by the employer for non-military reasons. Employers in these jurisdictions and other jurisdictions should consider reviewing their leave and paid leave policies with legal counsel to assess their potential obligations.
The federal Uniformed Services Employee and Reemployment Rights Act (USERRA) provides, in ...
The Equal Employment Opportunity Commission (EEOC) recently extracted a multi-million dollar settlement from the Social Security Administration (SSA) for claims of pay disparities based on race. This signals a more aggressive approach to pay equity analysis and claims by the EEOC and other federal enforcement agencies - including the Office of Federal Contract Compliance Programs (OFCCP) which is the US Department of Labor arm charged with the enforcement of affirmative action compliance by federal contractors and their applicable subcontractors. In the EEOC settlement ...
On May 24, 2024, Minnesota Governor Tim Waltz signed legislation amending the Minnesota Earned Sick and Safe Time (ESST) law that went into effect earlier this year on January 1, 2024. As a recap, the ESST law requires that employers provide each employee who works at least 80 hours per year in Minnesota at least one hour of paid sick and safe time for every 30 hours worked, up to at least 48 hours of accrued ESST a year. The law permits accrual or frontloading methods for providing ESST, with different roll-over requirements of unused time depending on the method used.
While there are ...
Colorado recently amended its CROWN Act of 2020 to include hair length as a protected characteristic for purposes of the state’s nondiscrimination law.
By way of background, in 2017, the U.S. Circuit Court of Appeals for the Eleventh Circuit ruled against the Equal Employment Opportunity Commission when it held that the defendant “…banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based discrimination.” EEOC v. Catastrophe Management Solutions, 876 F.3d 1273 (11th Cir. 2017). Seeing a ...
On April 23, 2024, the U.S. Federal Trade Commission (“FTC”) announced the issuance of a final Noncompete Clause Rule that would, if it goes into effect, ban future employment noncompete agreements and render most existing noncompete agreements void and unenforceable throughout the country. Our firm previously issued a number of alerts discussing the Noncompete Clause Rule.
When the Noncompete Clause Rule was announced, the rule was set to be effective 120 days after its publication in the Federal Register. On May 7, 2024, the rule was published in the Federal Register, which ...
At the end of April 2024, the U.S. Equal Employment Opportunity Commission (EEOC) published its final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace” (“Guidance”). The Guidance is lengthy, with 387 footnotes, and it contains 77 examples and scenarios of various types of unlawful harassment according to the EEOC. The EEOC’s examples include harassing conduct based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national ...
How should an employer react if an employee claims that mandatory anti-discrimination training conflicts with the employee’s religious beliefs? Two recent EEOC decisions shed some light on this question. In both cases, the employer provided mandatory training on treating co-workers and customers with dignity and respect to prevent discrimination and harassment. In one case, an employee sought to be excused from any portion of the training which discussed LGBTQI+ issues because he asserted that this conflicted with his sincerely held Catholic religious beliefs. In the other ...
In recent announcements to the media and otherwise, the Equal Employment Opportunity Commission (EEOC) provided the following information which should be of interest to all employers:
- 2023 EEO-1 Reports – The 2023 EEO-1 Component 1 data collection will open on Tuesday April 30, 2024. The DEADLINE for employers covered by the EEO-1 requirements to file their 2023 EEO-1 Component 1 report is Tuesday June 4, 2024. The 2023 EEO-1 Component 1 Instruction Booklet is available here.
It appears that any further consideration of resurrecting the Component 2 pay data collection has been ...
Recently, the Supreme Court of the United States issued a decision in Murray v. UBS Securities, LLC holding that whistleblowers are not required to prove their employer acted with “retaliatory intent” to be protected under the federal Sarbanes-Oxley Act of 2002 (“SOX”). Instead, whistleblowers only need to prove that their protected activity was a “contributing factor” in the employer’s adverse personnel action against them.
Congress enacted SOX to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe ...
Employers with employees located in the states falling within the jurisdiction of Fifth Circuit federal courts (e.g. Louisiana, Mississippi and Texas) should take note of an important federal appellate ruling impacting Title VII discrimination claims. On August 18, 2023, the U.S. Court of Appeals for the Fifth Circuit, issued a ruling in Hamilton v. Dallas County (Hamilton) that reversed decades of case precedent within the Circuit and changed the requirements for the ”adverse employment action” element of a Title VII discrimination claim to be in line with other federal ...
The U.S. Department of Labor (“DOL”) announced a final rule revising its guidance on how to analyze whether a worker is properly classified as an employee or independent contractor under the Fair Labor Standards Act (“FLSA”). The final rule rescinds the DOL’s 2021 independent contractor rule and takes effect on March 11, 2024.
The FLSA requires, among other things, covered employers to pay nonexempt employees at least the federal minimum wage for all hours worked and overtime pay for every hour worked over 40 in a workweek. These FLSA protections do not apply to independent ...
Employers should be aware of Colorado law changes that may impact their job postings and other practices, including some changes that are likely a welcome roll-back of some prior requirements. On January 1, 2024, the amendment to Colorado’s Equal Pay for Equal Work Act (the “Act”) took effect. As background, the Act applies to (1) all public and private employers that employ at least one person in Colorado and (2) all employees of those employers. The Act requires covered employers to include certain information in each job posting, including the hourly rate or salary ...
On October 26, 2023, the National Labor Relations Board (“NLRB”) issued its Final Rule addressing the Standard for Determining Joint Employer Status under the National Labor Relations Act (“NLRA”). The Final Rule rescinds the prior rule enacted in 2020 and expands the scope of joint employment by including indirect control in the joint-employer standard.
The Final Rule establishes that, under the NLRA, two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees and if the entities share or ...
For decades, the National Labor Relations Board (“NLRB”) has found that secret ballot elections are the best method for determining whether workers want to be represented by a union. A recent memo from the NLRB General Counsel, however, makes it clear that the current Board is intent on making it much easier for unions to win the right to representation without a vote of the employees. The memo, GC 24-01 (issued November 2), explains the Board’s approach following this summer’s decision in the case of Cemex Construction Materials Pacific and International Brotherhood of ...
As you likely know, the EEO-1 Report is a mandatory annual data collection which requires all private employers with 100 or more employees and all federal contractors (and their applicable subcontractors) with 50 or more employees to submit workforce demographic data, by job category and by sex and race to the Equal Employment Opportunity Commission (EEOC).
For the year 2022, the deadline for the filing of the EEO-1 Report is DECEMBER 5, 2023. The 2022 EEO-1 Report is based upon the filing employer’s workforce for a single pay period during the time frame of October 1, 2022 to December ...
On Friday, September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) posted for public inspection its proposed “Enforcement Guidance on Harassment in the Workplace.” The EEOC previously released proposed guidance on workplace harassment for public comment back in 2017, but the guidance was not finalized. The updated proposed guidance posted last week reflects recent changes in the law and recent trends, including:
- The U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII prohibits employment ...
On August 30, 2023, the U.S. Department of Labor (“DOL”) announced a proposed rule intended to “restore and extend overtime protections to 3.6 million salaried employees.” If finalized, the proposed rule would raise the salary levels that must be paid to certain employees for them to be exempt from overtime pay requirements under the federal Fair Labor Standards Act (“FLSA”). The full Lathrop GPM Client Alert on the subject can be found here.
Specifics of Proposed Rule
The proposed rule, if finalized, would raise the guaranteed weekly salary that must be paid to “white ...
The answer after the Stericycle ruling is likely “both.”
As the composition of the NLRB (National Labor Relations Board) changes, the roller coaster continues, making it difficult for businesses – whether private, non-profit, non-union or union and beyond – to draft and implement compliant policies, reduce risk, conduct or oversee investigations, and more. The result of this swing will likely be more confusion for all employees – union or not – as to whether common policies actually comply with the law, and more litigation involving employees who are disciplined for ...
The Equal Employment Opportunity Commission (“EEOC”) has released its enforcement and litigation statistics for FY2022. In summary, the EEOC’s data shows that there were 73,485 charges of discrimination filed in FY2022, which represents 12,154 more charges than were filed in FY2021. Of those charges, retaliation continues to be the most frequently cited claim -- accounting for 51.6 percent of all charges filed in FY2022. Race, color and sex discrimination claims increased marginally while religious discrimination claims more than sextupled from the prior fiscal ...
As we have previously reported, the most recent Minnesota legislative session resulted in a number of new laws that affect employers with Minnesota-based employees. We have issued client alerts about Minnesota’s new law banning noncompete agreements, as well as new and/or expanded laws regarding earned sick and safe time, paid family and medical leave, parental leave, pregnancy accommodation, lactating employees, and recreational adult-use marijuana. But the Minnesota Legislature did not stop there. Additional developments - including an amendment to Minnesota’s ...
In a memorandum released on May 30, 2023, the National Labor Relations Board (“NRLB”) General Counsel opined that noncompete agreements may violate the federal National Labor Relations Act (“NLRA”). In doing so, the General Counsel joins the Federal Trade Commission and a growing number of states in attacking the ability of employers to use these agreements.
Section 7 of the NLRA Act protects, among other things, the right of non-management employees to organize and to act together to improve working conditions. The NLRB General Counsel takes the position that noncompete ...
Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin, requires employers with 15 or more employees to accommodate the sincerely held religious beliefs and practices of applicants and employees unless doing so would impose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. §2000e(j). On Thursday, June 29, 2023, the U.S. Supreme Court issued an opinion that clarified what “undue hardship” means in the Title VII religious accommodation context, raising the bar ...
For federal government contractors and their applicable subcontractors, your OFCCP Portal registration/certification deadline is now here for 2023 affirmative action plans (AAPs) – it is Thursday, June 29, 2023! The OFCCP has not extended this deadline as of yet and has indicated that, unlike last year, it most likely will not do so this year – so be alert. Previous updates on OFCCP compliance: January 26, 2023; June 24, 2022; January 28, 2022
Regarding the submission of the EEO-1 Report, an annual obligation of federal contractors and their applicable subcontractors, the EEOC ...
On May 9, 2023, the United States Department of Health and Human Services issued a press release announcing that the federal Public Health Emergency for COVID-19 would expire on May 11, 2023. The Public Health Emergency has been renewed 13 times since it was first issued on January 31, 2020, at a time when there were only six known cases of COVID-19 and no known deaths in the United States. In declaring the end of the Public Health Emergency, the Department of Health and Human Services cited the success of the Biden-Harris Administration in effectively implementing the largest adult ...
The Pregnant Workers Fairness Act (the “PWFA”) goes into effect on June 27, 2023. Signed by President Joe Biden last year as part of the Fiscal Year 2023 Omnibus Spending Bill, the PWFA requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will cause the employer an undue hardship.
Who is a covered employer under the PWFA?
The PWFA covers employers with at least 15 employees, including both private and public sector employers, Congress ...
The current 2023 Minnesota legislative session has been a whirlwind of activity and may prove to be the most consequential year in recent history for many employers doing business in the state. Below is a summary of proposed new laws and one new law that has already passed – the Crown Act - that employers should pay attention to, as, if passed, they will directly impact compliance obligations and current operating procedures.
Paid Family and Medical Leave
The Minnesota House of Representatives recently approved HF2, a bill that would provide eligible employees with up to 18 weeks of ...
Several recent internet posts present interesting dichotomies between employer needs and employee wants, resulting in challenges and opportunities in the business world. One post noted:
“In 2023, organizations will continue to face significant challenges: a competitive talent landscape, an exhausted workforce, and pressure to control costs amid a looming economic downturn. How employers respond could determine whether they are an employer of choice.”*
What do employers want in 2023?
Employers want talent and skills that include good leadership qualities, strong work ...
On March 13, 2023, Governor Pritzker signed the Paid Leave for All Workers Act (the “Act”), which requires nearly all Illinois employers to provide employees up to 40 hours of paid leave annually to be used for any reason. The Act’s paid leave requirements will go into effect on January 1, 2024. Illinois is now the third state to require employers to provide paid time off to employees to be used for any reason, following Maine and Nevada.
Under the Act, Illinois employees are eligible to accrue paid leave at the rate of one hour of paid leave for every 40 hours worked up to 40 hours in a ...
In a recent opinion (Helix Energy Sols. Grp., Inc. v Hewitt), the Supreme Court held that a highly compensated supervisor paid on a daily-rate basis was not an executive exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement because he was not paid on a salary basis.
Hewitt, an offshore oil rig supervisor, filed the action against his former employer, Helix Energy Solutions Group, seeking overtime pay under the FLSA which guarantees overtime pay to covered employees when they work more than 40 hours in a workweek. Hewitt was paid on a daily-rate basis from 2014 to ...
A National Labor Relations Board (the Board) decision issued this week served notice on employers that they need to carefully consider the use of confidentiality and non-disparagement provisions in any employment-related separation and release agreements. In an Unfair Labor Practice proceeding, the Board reviewed two specific terms of a separation agreement that had been offered by the employer to several employees who were being terminated. The two terms in issue were (1) a requirement that the employee keep the terms of the agreement confidential and (2) a requirement that the ...
On February 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued Field Assistance Bulletin No. 2023-1 (FAB) to help employers (1) better understand their wage and hour obligations under the Fair Labor Standards Act (FLSA) with regard to their non-exempt teleworkers; and (2) how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework. Although the FAB does not break new ground or change the FLSA or the FMLA and their regulations, it does provide guidance on the DOL’s enforcement positions going forward.
Highly ...
Companies with employees working in Colorado must prepare now for that state’s Family & Medical Leave Insurance (“FAMLI”) program, which will provide paid leave to eligible employees for certain qualifying events beginning in 2024. Covered employers will need to register for the FAMLI program and periodically submit certain wage data and required premiums to the State’s FAMLI Division to help fund the program. Some of the important steps for covered employers to take to comply with the new FAMLI Program include the following:
Step 1 – Post the 2023 Program Notice.
Step 2
In early January, the Federal Trade Commission (FTC) announced a proposed rule that would ban the use of non-compete agreements by employers in the United States. The rule is a proposed, not final, rule and could face a number of legal challenges that might prevent it from taking effect. Therefore, while employers should be aware that major changes may lie ahead, there is still time to plan and prepare.
The FTC’s proposed rule is sweeping. With only limited exceptions, it would retroactively invalidate all existing non-compete agreements between employers and employees and bar ...
Last Friday, January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) issued its newest Corporate Scheduling Announcement List (affectionately known as CSAL) for applicable supply and service federal contractors and their applicable subcontractors. The OFCCP definition of “federal contractor” is relatively straightforward - generally a single $50,000 contract with a federal agency - but the OFCCP definition of an applicable subcontractor to a federal contractor can be much more subtle in application and could be difficult to ascertain.
The OFCCP ...
On January 1, 2023, the amendments to the Illinois One Day Rest in Seven Act (“ODRISA”) took effect, and the changes are significant. Employers with one or more employees in Illinois should take note of these new amendments to avoid costly penalties.
New Rest Breaks
The amended ODRISA requires covered employers to provide non-exempt employees with a minimum of 24 hours of rest within every consecutive seven-day period. Prior to January 1, 2023, the ODRISA required employers to provide eligible employees with at least twenty-four consecutive hours of rest in every “calendar ...
Employers should be aware of recent updates regarding two #MeToo-related federal laws: the Speak Out Act and the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
The Speak Out Act
President Biden signed the Speak Out Act on December 7, 2022, and the law went into effect immediately. The Act makes non-disclosure and non-disparagement clauses agreed to prior to a “sexual assault dispute” or “sexual harassment dispute” unenforceable. In other words, non-disclosure agreements signed as part of an onboarding process for new employees are not ...
As much of the country wound down from Thanksgiving celebrations with friends, families and everything in between last month, football programs around the country were also recuperating from one of the most anticipated weekends of the season – the historic rivalry weekend which occurs just in time for the Thanksgiving tryptophan to wear off. As an added bonus, it also happened to be that time of year for many college programs when the afternoon football game is followed quickly by a basketball game in the evening. It is, for some sports fans, the “most wonderful time of the year” ...
As employers increasingly operate in multiple jurisdictions and are allowing more and more employees to work remotely, employers should be mindful that a number of states are passing pay transparency laws. Employers hiring workers in such states and/or posting positions that permit remote work locations need to be sure that they are aware of and comply with potential pay transparency laws.
The California Transparency Laws
California, which already required employers to disclose salary information to applicants upon reasonable request, has added new pay scale disclosure ...
It’s that time of year again for holiday parties. Because many companies did not host holiday parties in 2020 or 2021 due to the COVID-19 pandemic and are now returning to in-person events, it’s time to brush up on the best practices for avoiding holiday-related legal claims.
Holiday parties are a wonderful opportunity for team building and increasing morale. However, there are potential legal issues associated with company holiday parties. The following are some of the legal issues to think about when planning a holiday party:
1. Religious Discrimination: Be careful not to ...
On October 19, 2022, the Equal Employment Opportunity Commission (“EEOC”) released a new poster that employers must prominently display in the workplace. The new poster replaces an old version, titled “Equal Employment Opportunity is the Law,” which featured important information regarding federal laws prohibiting workplace discrimination embedded in blocks of text that may have been cumbersome and difficult to read. The new poster, entitled simply “Know Your Rights,” contains much of the same information, along with some new updates.
Perhaps most striking ...
When was the last time your company’s website underwent a compliance review? Is your website compliant with the Americans with Disabilities Act (“ADA”)? Did you know that your website may be considered a public accommodation under the ADA? These are all questions you should be asking yourself when it comes to your company website.
Employer websites may be considered public accommodations for public-facing businesses under Title III of the Americans with Disabilities Act (“ADA”). Though the ADA does not explicitly mention websites or mobile applications, it states ...
The French sociologist Jean Baudrillard once said: “The sad thing about artificial intelligence is that it lacks artifice and therefore intelligence.” While some may view this as a harsh critique of a tool that has improved many facets of modern society, artificial intelligence (“AI”) is not infallible, particularly in the employment context. The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance on employers’ use of artificial intelligence in employment-related decisions, such as applicant screening, hiring, and performance ...
In June 2022, in S.W. Airlines Co. v. Saxon, 142 S. Ct. 1783 (2022), the Supreme Court weighed in on the scope of arbitration agreements in employment contracts for transportation workers. Saxon, a ramp supervisor at Southwest Airlines who worked loading and unloading cargo from aircrafts, brought a putative class action against Southwest for allegedly violating the Fair Labor Standards Act by not providing ramp workers with overtime compensation despite requiring them to work over forty hours a week. Southwest argued that Saxon was bound by the arbitration provision in Saxon’s ...
Effective July 1, 2022, employers with at least one employee working in the City of Chicago must provide Chicago-based employees with sexual harassment prevention training. The City’s Human Rights Ordinance now requires one hour of annual training for all employees and a second hour of training for managers/supervisors. In addition, in what appears to be a unique requirement, all employees must also receive one hour of “Bystander Intervention” training.
Bystander Intervention is defined by the City as “safe and positive actions” a person may take to “prevent ...
Just this month the Supreme Court of the United States issued its decision in Viking River Cruises, Inc. v. Moriana, No. 20-1573, 2022 WL 2135491 (U.S. June 15, 2022), wherein it partially reversed the California Supreme Court’s holding in Iskanian v. CLS Transp. Los Angeles, LLC. The case deals with the controversial Private Attorneys General Act (“PAGA”). California’s Labor and Workforce Development Agency (“LWDA”) is authorized to enforce California’s labor laws; however, because the legislature believed that the LWDA did not have sufficient resources to ...
The Office of Federal Contract Compliance Programs (OFCCP) announced last December 2021 that covered federal government contractors and their covered subcontractors not only MUST register in the OFCCP’s newly established online portal but also MUST certify their 2022 affirmative action plan (AAP) compliance by JUNE 30, 2022, a date fast approaching!!! The portal opened in February 2022.
The OFCCP portal can be found at https://contractorportal.dol.gov and guidance for registration and certification in the portal can be found ...
Under Title VII of the Civil Rights Act of 1964, an employer may not discriminate against any individual because of the individual’s religion. To comply with this requirement, employers must reasonably accommodate an employee’s sincerely held religious belief and practice, unless doing so would present an undue hardship. The Supreme Court has declined to review two cases where it could have clarified when a religious accommodation is reasonable, and federal appellate courts currently are divided on the issue.
On May 25, 2022, the Third Circuit Court of Appeals joined the ...
Our Chambers-ranked Labor & Employment team is known for frequently writing and speaking on various employment, workplace and labor-related topics and sharing insights with businesses in different industry sectors. This spring has been no different (and has flown by for us). Here are some highlights we want to make sure you don’t miss:
- On May 25, Partners Bridget Romero and Brian Woolley presented at the 34th Annual Conference of the Heartland Labor and Employment Law Institute, held in the Kansas City area. Bridget co-presented a session on “COVID-19 and the Workplace: The ...
On March 1, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on how best to approach employee accommodation requests for those opposed to employer COVID-19 vaccine requirements because of their religious beliefs.
As a quick refresher, the EEOC enforces Title VII which prohibits employment discrimination based on religion. Employers are required to reasonably accommodate applicants and employees who have sincerely held religious beliefs to enable them to perform the essential functions of their jobs and where their beliefs may conflict ...
I was sitting by my window the other day and noticed how the sun was melting the snow around my house even though the air temperature was cold. For a person living in a northern climate, I see this as a sign of Spring and with it, the return to green grass, flowers, and warmer temps. It also reminds me that the semi-annual ritual of the changing of the clocks for those states that participate in Daylight Savings Time is upon us. Each Spring, we “Spring Ahead” by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each Fall, when Daylight Savings Time ends, we “Fall ...
One legal issue highlighted by the #metoo movement is the use of arbitration to resolve workplace sexual harassment claims. Some employers require employees to sign agreements at the time of hire, or at some other time before any claim arises, in which both sides agree that any later workplace disputes will be resolved by arbitration and not in court. Because arbitration is a private dispute resolution process, some #metoo advocates have argued that arbitration of sexual harassment claims allows the misdeeds of bad actors to be concealed and, perhaps, facilitates repeat offenses ...
The federal Occupational Safety and Health Administration (“OSHA”) withdrew its COVID-19 vaccination and testing emergency temporary standard (“ETS”) as of January 26, 2022. The ETS had mandated that employers with 100 or more employees require all employees to get fully vaccinated against COVID-19 or wear face coverings and undergo weekly testing in lieu of vaccination. This action came shortly after the United States Supreme Court stayed the implementation of the ETS.
Although OSHA has withdrawn the ETS as an emergency temporary standard, it has announced that it ...
If your organization is a federal government contractor or subcontractor with annual affirmative action plan requirements, you need to be aware of some recent, important developments.
On December 2, 2021, the U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (“OFCCP”) issued an announcement introducing its new online contractor “portal.” The OFCCP describes the “portal” as a platform through which covered federal government contractors and subcontractors must register and then subsequently annually “certify” whether they ...
As we approach the second anniversary of the first confirmed U.S. case of COVID-19, it is hard to believe that we are two years into this global pandemic. Pre-2020, we likely never imagined we’d use the phrase “unprecedented times” so often, that toilet paper would become the hottest commodity for a time, or that we would contribute to a massive surge in shares of a company called Zoom. For many of us, our work lives changed in a number of ways, one of which being that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) created standards designed to ...
On December 14, 2021, the EEOC issued new guidance in its COVID-19 technical assistance FAQs, clarifying the circumstances under which COVID-19 may be considered a disability under the Americans with Disabilities Act and the federal Rehabilitation Act. “This update to our COVID-19 information provides an additional resource for employees and employers facing the varied manifestations of COVID-19,” according to EEOC Chair Charlotte A. Burrows. “Like effects from other diseases, effects from COVID-19 can lead to a disability protected under the laws the EEOC enforces ...
Many of you saw our Client Alert detailing the requirements of the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 4, 2021. The ETS applies to employers with 100 employees or more and contains COVID-19 vaccine and/or testing requirements that employers must adopt to minimize the risk of COVID-19 transmission in the workplace.
On November 12, 2021, the United States Court of Appeals for the Fifth Circuit issued a ruling imposing a stay on enforcement of the ETS. The federal appellate court ordered OSHA to “take no ...
On October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance yet again. This time, the updates focused on religious accommodations to vaccine mandates under Title VII.
As background, similar to disability accommodations, employers are required to reasonably accommodate applicants and employees who have sincerely held religious beliefs to enable them to perform the essential functions of their jobs and where their beliefs may conflict with company policy. However, employers have a lower burden than with disability ...
In its Bostock v. Clayton County, Georgia ruling in June 2020, the U.S. Supreme Court ruled that the prohibition on “sex” discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and/or gender identity. The Bostock ruling raised, but did not decide, the question of whether or not other federal sex discrimination laws, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act, might also inherently prohibit LGBTQ+ discrimination. While the Bostock ruling applies only to Title VII ...
In the wake of President Biden’s issuance of executive orders requiring that certain employers in the country require COVID-19 vaccinations, some states, like Texas, are taking action to try to block these mandates. This raises the question of whether a state or local government can override federal vaccine requirements.
Federal Vaccine Mandates
On September 9, 2021, President Biden issued executive orders mandating COVID-19 vaccinations for federal employees, employees of certain health care entities, and certain employees of federal contractors and subcontractors ...
EEOC Updates Guidance on COVID-19 and the ADA
On October 13, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance regarding vaccination and other COVID-related workplace issues, providing businesses with important information as they continue to navigate evolving rules and regulations related to the pandemic. The key development from this round of updates is that the EEOC has now clarified that there is no cap or limit under federal employment discrimination laws enforced by the EEOC on the size of vaccine incentives offered by an employer to ...
Effective October 1, 2021, Connecticut and Nevada join a chorus of other states – including, for example, California, Colorado, Maryland, Washington and Rhode Island - in implementing new pay disclosure laws. Employers with employees in Connecticut and Nevada must now disclose wage and/or wage range information at various stages in the hiring process. Connecticut and Nevada’s new pay disclosure laws are designed to level the playing field for applicants, promote pay equity, and promote pay transparency and accountability.
Under Connecticut’s “An Act Concerning the ...
Last month, on September 2, 2021, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), which enforces federal government contractor requirements, rescinded a Trump-Era notice of intent not to use EEO-1 Component 2 employer pay data to analyze pay equity issues. The OFCCP stated that “it was premature to issue a notice stating OFCCP did not expect to find significant utility in the data.” 84 FR 49354 (September 2, 2021). The EEO-1 Component 2 Data was last collected by the federal government for calendar years 2017 and 2018 and consists of ...
According to the Centers for Disease Control and Prevention (“CDC”), some individuals may experience post-COVID-19 conditions that involve a wide range of long-term health problems. Per the CDC, these post COVID-19 conditions may be known as “long COVID, long-haul COVID, post-acute COVID-19, long-term effects of COVID, or chronic COVID.” [1] These long-COVID symptoms can include:
- Difficulty breathing or shortness of breath
- Tiredness or fatigue
- Symptoms that get worse after physical or mental activities
- Difficulty thinking or concentrating (sometimes referred to ...
Last week, the National Labor Relations Board’s General Counsel directed the Regional Offices to adopt a hardline approach to settling unfair labor practice charges. When an employee or union files an unfair labor practice charge, the Regional office will conduct an investigation. This investigation generally does not allow the employer to see any statements or other evidence provided by the charging party or its witnesses, and, in fact, the employer may not even know the identity of the witnesses. Based on this investigation, and before any hearing, the Regional Office ...
On August 28, 2021, Missouri joined the growing list of states with legislation aimed at protecting employees who experience domestic or sexual violence. Missouri’s Victims Economic Safety and Security Act (“VESSA”) applies to all employers with at least 20 employees. This new law provides unpaid leave and reasonable safety accommodations to employees who are victims of domestic or sexual violence or who have a family or household member who is a victim of domestic or sexual violence. It also requires employers to give notice of the new law to all current employees and ...
Deja vu, all over again!!! Last week, the EEOC announced that the deadline to submit and certify 2019 and 2020 EE0-1 Component 1 Reports has been changed – for the umpteenth time. The NEW filing deadline is now Monday, October 25, 2021. And, the EEOC has said (again, as I recall) that this new deadline is the FINAL DEADLINE, that all eligible filers must submit data by this time, and that ”No additional changes to the filing deadline will be made.”
While we should all take the EEOC at its word, the EEOC also said that this latest extension was due to the “continuing impact of the pandemic ...
Remember back in May 2021 (May 13 to be exact!) when the CDC dropped bombshell recommendations which outlined what individuals could / could not do based on vaccination status?! Vaccinated individuals rejoiced that they could remove their masks inside and largely dispense with social distancing. Unvaccinated individuals were, of course, less enthused. At that time, OSHA guidance had been to not treat employees differently based on vaccination status. The agency fairly quickly pivoted, affixing this banner to the top of its website on May 18, 2021:
“The Centers for Disease ...
Yesterday, on July 27, 2021, the U.S. Center for Disease Control (CDC) issued new COVID-19 guidance, including recommending face masks even for vaccinated people when they are in indoor public settings in geographic areas with substantial or high COVID-19 transmission rates, as mapped from time to time by the CDC. The CDC:
- Updated guidance for fully vaccinated people given new evidence on the degree to which the B.1.617.2 (Delta) variant is currently circulating in the United States and its high contagion factor.
- Recommended that fully vaccinated people wear a mask in public ...
The new federal administration continues to put its stamp on the development and enforcement of wage and hour laws under the Fair Labor Standards Act (FLSA). Recently, the Department of Labor (DOL) issued a new Field Assistance Bulletin (Bulletin 2021), revoking a Trump administration policy relating to the practice of seeking liquidated damages in pre-litigation settlement discussions.
Employers who violate the FLSA provisions relating to minimum wage, overtime compensation, and protections for tipped employees, are liable for the unpaid wages or tips as well as an equal ...
On June 10, 2021, OSHA released a long-awaited new Emergency Temporary Standard (“ETS”), which establishes new mandatory workplace safety requirements for employers providing healthcare services or healthcare support services. The ETS aims to protect employees from exposure to COVID-19 in the workplace by requiring the following:
- a COVID-19 plan based on an assessment of COVID-19 hazards;
- patient screening;
- transmission-based precautions;
- continued personal protective equipment (PPE) usage;
- social distancing while indoors;
- proper cleaning and disinfecting ...
The gig economy is an industry that is generally characterized by the prevalence of short-term contracts, freelance work, and indefinite flexible working arrangements. It also usually comes with getting work through some type of online or app-based digital platform. The unifying factor in all of these companies is that they are managing independent contractors and freelancers who have signed up to perform task services for the ultimate end user. From a legal perspective, this is very different from the traditional employee model. In a recent podcast, we explored the impacts of the ...
The Equal Employment Opportunity Commission (EEOC) has issued an important update to its COVID-19 guidance. Most notably, the update provides long-awaited guidance on mandatory vaccination policies and vaccination incentives—both of which we discussed in earlier blog posts and client alerts.
Mandatory Vaccinations
The EEOC’s updated guidance makes clear that, under employment discrimination laws, an employer can require its employees to be vaccinated for COVID-19 before physically entering the workplace, subject to the reasonable accommodation provisions of the ...
The Centers for Disease Control and Prevention (CDC) recently issued new guidance regarding what activities fully vaccinated people may safely engage in. The CDC stated that fully vaccinated individuals can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal or territorial laws, rules and regulations. In response to the CDC’s new guidance, the Occupational Safety and Health Administration (OSHA) added a statement to its January 2021 guidance stating that OSHA is reviewing the recent CDC guidance and will ...
As the number of people working remotely decreases while employees start returning to their places of employment, or decide to make home their permanent office, a refresher on the requirements around the compensability of travel time to and from the workplace could prove helpful.
The general rule under the Fair Labor Standards Act (FLSA) is that employees must be compensated whenever they are working. However, pursuant to the Portal-to-Portal Act, time spent traveling to and from the actual place where the employee performs his or her principal activities, or “commuting ...
A: California employers (including public entities) with more than 25 employees nationally.
Q. Who is eligible for the SB 95 leave?
An EEO-1 Report must be submitted by all private sector employers with at least 100 employees, or federal contractors with 50 or more employees. This submission has been required for over a half century. Because of the pandemic, the due dates for the submission of the 2019 and 2020 EEO-1 Reports were suspended by the EEOC until March 31, 2021.
Earlier this year the EEOC announced that the EEOC’s collection site for the submission (the EEOC On Line Filing System) will open in April 2021 for an eligible employer’s submission of both the 2019 and 2020 EEO-1 Component 1 workforce ...
On Thursday, March 11, 2021, President Biden signed an historic $1.9 Trillion COVID-19 Relief Package known as the American Rescue Plan Act. You may be (rightfully) thinking, “wow, that’s a lot of money, what’s in it for me?!” In fact, many Americans will receive direct stimulus checks aimed at helping to offset widespread economic strain caused by the pandemic. Whether you use the money to pay overdue bills or towards a new car is up to you, and either way the economy will theoretically be improved. In addition to the personal funds the federal government is sending to millions ...
By now, we are all familiar with the routine employee handbook disclaimer:
This Handbook is provided for informational purposes only and is not a contract between the Company and any employee.
Even with such a disclaimer in place, though, employers should be thoughtful when drafting and implementing detailed policies, particularly wage-related policies, as highlighted by a recent case out of Minnesota. In Minnesota, courts have often refused to construe an employee handbook as a contract when it contains a conspicuous contract disclaimer. In Hall v. City of Plainview, though ...
- Time off from work to get vaccinated, often with pay
- Incentive bonus (for example, $100)
- Gift cards
New Test
The Final Rule implements a five-factor economic reality ...
Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does ...
The guidance document identifies the standards that are most frequently cited in coronavirus-related OSHA inspections and ...
- Check the COVID-19 infection rates in your area, which can be accomplished by consulting the applicable state and local health ...
Many of the updates to the guidance document are consistent with the EEOCs March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (ADA) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 ...
Candidly, the Workplace Transparency Act (WTA) deserves a post all its own, but since this is a blog post and not a treatise, I offer a few (but importantly, not all) of the highlights of the new WTA:
- The WTA expanded the definition of discrimination under ...
Two current developments could provide a boost to union organizing efforts. Even in normal times, a workforce that is unsettled and facing an uncertain future can be fertile ground for a union organizing effort. Employees looking for certainty and stability may be more receptive to a unions promise to solve the problems of the day. Employers should be on higher alert right now, because these are not normal times. Workplaces may be at greater risk of union organization efforts due to the chaos in the economy caused by the COVID-19 pandemic, coupled with the following two ...
On June 15, 2020, the United States Supreme Court handed the LGBTQ community a major victory. In Bostock v. Clayton County and companion cases, the Supreme Court held that an employer who terminates an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964.
The Courts ruling involved a trio of cases, with each employee filing a lawsuit under Title VII alleging discrimination based on sex. Title VII applies to employers with at least 15 employees in each of 20 or more calendar weeks in the current or preceding calendar year and makes it unlawful ...
Employees across the nation are hurting. Some are grieving the loss of one or more loved ones from COVID-19. Against the backdrop of rampant unemployment, many are anxious about how long they might be employed, looming pay cuts, child care challenges, and the rising cost of food. Combined with intense feelings about injustices and other ...
On May 18, 2020, the United States Department of Labor (DOL) implemented a final rule arguably giving employers more flexibility in the retail and service industries to exempt certain employees from overtime pay requirements.
Generally, the Fair Labor Standards Act (FLSA) requires that employers pay employees at an overtime rate for time worked in excess of 40 hours in a workweek, unless the employees are exempt under Sections 7 or 13 of the statute. One of these exemptions applies to employees who work for a retail or service establishment if: (i) the employees regular rate of pay ...
The COVID-19 pandemic has drastically changed the landscape for all employers. Most have had to lay off or furlough a significant number of employees and institute other cost-cutting measures, such as salary decreases, discontinuation of 401(k) matching programs, and hours reductions. For those still operating, they face the challenge of keeping their employees safe while still meeting their customers demands, priorities that are not always aligned.
In this environment, labor unions have been fighting to insert themselves into these critical management decisions in the name ...
In the continued wake of the COVID-19 pandemic, numerous states have recently taken steps, through either new legislation or executive orders issued by governors, to expand both workers compensation and unemployment benefits in circumstances tied to COVID-19. We highlight Minnesota developments as examples.
Workers Compensation Benefits for Essential Workers:
Public health officials and business leaders are grappling with how to respond to the increasing number of presumptive and confirmed cases of COVID-19 across the United States. Seattle has closed public schools for two weeks in light of coronavirus and banned large gatherings, including sporting events. This week, many higher education institutions, including the University of Minnesota, Duke University, Georgetown, and the University of Notre Dame, canceled in-person classes and announced that they are temporarily switching to an online learning environment. Nationally ...
- The minimum salary for executive, administrative and professional employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) has increased from $455 to $684 per week ($35,568 per year).
- The annual compensation now required to meet the exemption under the FLSA for highly compensated employees has been raised to $107,432.
- Several states increased the state ...
The National Labor Relations Board (NLRB or the Board) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employers premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employers property when such activity would significantly interfere with the employers use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have ...
- Paid leave (generally).
- Medical leave.
- Family leave.
- Work shift scheduling requirements.
- Wage theft ...
- What to Do When You Shut Down Your Business Due to Inclement ...
The last quarter of the calendar year is often a time when companies are busy with planning and budgeting for the following year. Minnesota employers doing budget planning for 2018 need to keep in mind that the state minimum wage rates will be adjusted as of January 1, 2018.
Last week a federal judge in Washington, D.C. directed the Equal Employment Opportunity Commission to revisit its regulations governing employee wellness programs but did not vacate the regulations. The court noted that striking down the regulations until they could be revised may have significant disruptive consequences and it assumed that the EEOC could address the failings it identified in short order. Nonetheless, the decision not to stay implementation or vacate the regulations creates confusion for employer wellness programs.
The EEOCs wellness regulations took ...
Not surprisingly ...
On Thursday of last week, the U.S. Senate confirmed Alexander Acosta as the 27th Secretary of Labor, filling the final open seat in President Donald Trumps cabinet. With its secretary in place, the U.S. Department of Labor (DOL) will now be able to move forward with decisions on two major rule-making issues.
The most widely watched decision to be made by the DOL is whether to defend or abandon the Obama Administrations FLSA rule that would, if effective, significantly increase the minimum salary required for white collar exempt employees. As we reported earlier, that rule was blocked by ...
As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.
After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOLs request, but ...
A lot has happened since our last blog posts on the Minneapolis paid sick leave ordinance and the St. Paul paid sick leave ordinance. While the initial implementation dates for both ordinances are still scheduled for this summer on July 1, 2017, a Hennepin County District Court issued a temporary injunction in January 2017 prohibiting the City of Minneapolis from enforcing the Minneapolis ordinance against any employer based outside the geographic boundaries of the city. The Hennepin County District Court decision is being appealed by the City of Minneapolis. Nonetheless, the ...
Last week, the United States Supreme Court ruled that appellate courts reviewing a lower court ruling on the enforceability of an Equal Employment Opportunity Commission (EEOC) subpoena must use an abuse of discretion standard. By requiring this deferential standard, the Supreme Court positions lower courts to be able to impose reasonable limits on the EEOCs investigatory powers.
The Supreme Courts ruling was issued in the case of McLane Co., Inc. v. Equal Employment Opportunity Commission. The McLane case arose out of McLanes termination of Damiana Ochoa for her failure to pass a ...
The NCAA Men's and Women's Basketball Tournaments start this week. While these exciting college sports events bring exciting comebacks, underdog wins, and pride in employee alma maters, they also can usher in several weeks of reduced productivity, potentially contentious employee interactions, and believe it or not - legal risk.
In 2016, 70 million tournament brackets were completed, many of which involved office pools. The first round of March Madness reportedly costs employers an estimated $4 billion in lost productivity. As part of this decreased productivity, employers ...
Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document ...
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.
The FLSA requires that employers pay their workers ...
On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.
Mr. Acosta is Trumps first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta's confirmation less controversial and more ...
On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia's sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing. Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia ...
Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance document on workplace harassment. The EEOC is seeking public comment on the guidance through February 9, 2017.
Preventing systemic harassment is listed as a priority in the EEOCs Strategic Enforcement Plan for 2017-2021. In 2015, harassment charges represented over 30 percent of all charges filed with the EEOC. The same year, the EEOC created a task force to analyze workplace harassment and identify innovative and creative prevention strategies. The task force issued its findings ...
In our December 16, 2016, post, we reported that petitions for certiorari to the U.S. Supreme Court were filed with respect to five U.S. Circuit Courts of Appeals opinions concerning whether arbitration clauses requiring individual arbitration in lieu of class or collective lawsuits (class-action waivers) are invalid under federal labor law. There is a clear circuit divide on this issue, the resolution of which will impact thousands of employers and potentially millions of American workers.
The Supreme Court granted certiorari on January 13, 2017, as to opinions rendered by the ...
While the presidential inauguration is front and center, here are two quick items employers will want to take note of:
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A Hennepin County Court judge has issued an order temporarily blocking enforcement of Minneapolis new paid sick time ordinance against employers who are not located within the city limits.
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There is a new I-9 form that must be used starting this Sunday, January 22. Previous versions of the I-9 may not be used with new hires after that date.
Minneapolis Paid Sick and Safe Time. We have previously blogged about the Minneapolis paid sick leave ordinance. The ordinance ...
I recently read an interesting article noting the increase of employees reporting that they have been treated rudely or uncivilly by a boss or colleague in the workplace. The topic of workplace bullying or the bully boss has received significant attention over the last few years. Some researchers have noted that even highly performing employees may face this type of negative behavior. It is a situation that can create frustration for employers, but which typically does not give a bullied employee a legal claim unless the workplace bullying is tied to unlawful discrimination, sexual ...
Well, what a year 2016 has been! As the retrospectives start pouring in, we want to get ahead of the curve and look back on some of the workplace and employment law developments of 2016.
According to a recent Forbes article, innovations in the world of work this year have included Dutch desks that pull up to the ceiling at 5:30 pm, putting an exclamation point on the end of the workday, and desks in Greece that convert into beds for power naps or overnighters. We see the latter as especially rife with employment law risk. Overtime anyone? (Not to mention the potential for office romance gone awry ...
In our September 23rd post, we reported that the National Labor Relations Board (NLRB) and the U.S. Department of Justice filed a petition for certiorari in NLRB v. Murphy Oil decided by the 5th Circuit Court of Appeals, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class-action waivers)are invalid under federal labor law. As we reported in September, the petition was filed in the face of a clear split among the federal Circuit Courts of Appeals. The U.S ...
The December holiday season is, in many ways, a wonderful time of year. To make sure it stays that way, here is a quick refresher for employers on how to sidestep the panoply of employment law minefields that can crop up during the holiday season.
Religious Discrimination and Accommodations
December is home to multiple religious holidays, including Hanukkah, Christmas, Kwanzaa, and the Winter Solstice, among others. For this reason, it is important to remember that federal law and many states prohibit religious discrimination in employment and require religious accommodations ...
For those in the employment law and human resources fields, there are lots of moving targets to track this holiday season. Two of those moving targets include the temporary block placed on the U.S. Department of Labors (DOL) new federal overtime rules and a pending legal challenge to a new OSHA rule.
DOL Overtime Rule
As discussed in our post last week, a federal district court in Texas has issued a nationwide injunction blocking implementation of the new DOL overtime rules that were set to go into effect on December 1st. Yesterday, the DOL appealed the district courts ruling to the U.S ...
As we let you know last week, legal challenges to the new federal overtime pay rules scheduled to go into effect on December 1, 2016, are pending in federal district court in Texas. On November 22, 2016, the Judge hearing the Texas cases issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new rules. As such, employers who were busily preparing to comply with those rules have a reprieve at least for now- from having to comply.
In his decision, Texas Judge Mazzant concluded that the plaintiffs established a prima facie ...
In the aftermath of President-elect Trumps victory, many employers are wondering how the president-elects priorities will impact their employment and labor law obligations. One immediate question on employers minds is whether they still must comply with the Obama administrations new federal overtime pay rules set to go into effect on December 1, 2016. It is highly unlikely that there will be any activity related to these rules by President-elect Trump prior to the December 1 deadline, although a later retraction or retrenchment of the rules is certainly possible. Employers ...
The most powerful weapon a labor union can unleash against an unwitting employer, whether unionized or not, is a strike. Strikes, however, can take different forms and arise under different circumstances. Last month, the National Labor Relations Boards (NLRB) Office of the General Counsel (GC), the prosecuting arm of the federal NLRB agency, issued a short but powerful memorandum regarding an increasingly common union tactic: intermittent and partial strikes. While the Board has generally held that such strikes are not protected under the National Labor Relations Act, the GC ...
The White House has detailed a broad series of new administrative steps in response to an earlier Executive Order calling for actions that enhance competition to benefit consumers, workers, and entrepreneurs. The White House described these steps as consistent with the continuing effort of the administration to find ways to increase job growth and reduce income inequality across the country. Although the new administrative steps do not include new prohibitions and generally do not require immediate action, the steps do raise the possibility of near-term legislative and ...
With the presidential and general election rapidly approaching, Minnesota and all employers need to be mindful of employees rights to reasonable voting leave under state laws. Election season, particularly polarizing presidential campaigns and elections, can also present some headaches for well-intended employers.
Minnesota employees have a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal ...
Last week, the Equal Employment Opportunity Commission (EEOC) announced the approval of the new EEO-1 report form by the White House Office of Management and Budget (OMB). Beginning in March 2018, the EEOC will use the revised EEO-1 report to collect summary employee pay data from certain employers. Specifically, private employers with 100 or more employees are required to fill out the revised EEO-1 report on an annual basis. Federal contractors and subcontractors with 50-99 employees will not have to submit summary pay data, but they will continue to report demographic data ...
Insubordination is a term that shows up frequently in documentation and discussions about why an employee was, or should be, disciplined or terminated. According to the dictionary definition, insubordinate means not obeying authority or refusing to follow orders. Following direction from ones boss is a pretty important part of any job, so insubordination certainly sounds like it should be a terminable offense. However, it is risky for employers to accept a charge of insubordination at face value without analyzing the nature of the conflict that is driving it. Labor law protects a ...
On September 9, 2016, the National Labor Relations Board (NLRB) and the U.S. Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class action waivers)are invalid under federal labor law. Given the clear split on this legal issue among the federal circuit courts, the Supreme Court appears likely to accept review.
What's the Split and Where Does Minnesota Stand?
Class Action Waivers Are ...
- The ordinance will become effective July 1, 2017 for employers with 24 or more employees. The effective date is January 1, 2018 for employers with 23 or fewer employees.
- The ordinance requires all
The Minnesota ...
Its been a busy year for Minnesota employers on the wage and hour front. As discussed in prior posts, new salary requirements will go into effect for white collar exempt workers on December 1, 2016, and a new Minneapolis sick pay ordinance will become effective July 1, 2017. On the heels of these developments, employers may also need to prepare to address a potential $15 per hour minimum wage requirement in Minneapolis. Wage advocacy groups recently scored a victory when a Minnesota district court said that Minneapolis voters must be permitted to vote in November 2016 on the proposed $15 ...
Anti-Retaliation Requirements:
A white news anchor has filed a race discrimination lawsuit against her former employer, a Pittsburgh television station. Wendy Bell made headlines earlier this year when she was let go from her anchor position after posting controversial comments on a Facebook page sponsored by the television station. Now, Bell is making headlines again for her unusual race discrimination claims.
Earlier this spring, the Washington Post reported that Bell was fired after she posted comments on Facebook about a mass shooting that Bell had recently covered on air.
In her comments, Bell stated You ...
Last week, we wrote about employer best practices with respect to responding to possible employee medical issues. A recent case out of the Eighth Circuit showcases one employers creative approach to thinking about possible future medical issues.
BNSF Railway Company, based in Nebraska, reportedly has had a policy of not hiring any applicant for a safety sensitive position if the applicant has a Body Mass Index (BMI) of 40 or higher. According to the Centers for Disease Control and Prevention, a person with a BMI of 30 or higher is considered obese. In the recent Eighth Circuit case ...
The plaintiffs in Tyson Foods worked in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa. To do their ...
Last week, the Eighth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) ruling that a Jimmy Johns franchisee engaged in unfair labor practices and violated the rights of workers under the National Labor Relations Act (NLRA), after the employees were terminated for staging a public campaign protesting the company's sick leave policy.
Some popular wellness program features include financial incentives, disincentives, and data mining. According to some sources, more than a third of U.S. employers use financial incentives to encourage employees to participate in wellness programs. In addition, data mining and use of big data ...
Just a few of the employment and ...
The Minnesota unemployment law generally provides that employees terminated through no fault of their own are entitled to benefits. Individuals who voluntarily quit ...
The executive order is one of the methods the Obama administration has chosen to ...
In the Burrows case, the plaintiff, a college administrator, sued her former employer, claiming she was ...
In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by ...
The increased salary issue was expected to reach the boiling point with the release of the final DOL rule in ...
Retaliation claims are increasingly common, because virtually ...
The tugboat captains case makes painfully clear that identifying and ...
The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:
- Are employees entitled to time-and-a-half pay for holidays worked? No unless time worked on a holiday includes overtime ...
When picturing a union organizing campaign, you might picture a contentious battle between a justice-seeking union and the supposedly big bad corporate employer. But, this week we saw one example of unionization in a more cooperative work environment . . . literally.
After facing increased EEOC scrutiny, employers may soon be receiving some welcome news from the EEOC. Last week, the EEOC issued a Notice of Proposed Rulemaking for a rule that, if finalized, would amend regulations ...
We had written previously about preventive steps organizations might take to avoid joint employer liability, and such actions should be considered now more than ever following the ...
President Obamas order is the latest in a series of executive orders aimed at federal contractors as the administration tries, so far unsuccessfully, to get broader ...
Under fundamental principles of contract law, a contract must be supported by ...
The Final Rule
Like most law firms, we interview current law students in the fall to identify those we will invite to work with us the following summer. Those who join us are summer associates, and we have just bid adieu to a terrific group from this summer. Summer associates who accept offers from the firm for attorney positions will rejoin us after they complete their last year of law school and take that little test called the bar exam.
Millennials all, our recent summer associates didn't fit the negative stereotypes so often cast upon workers of their generation. This should really come as no surprise; ...
The draft executive order, which is marked pre-decisional and deliberative, would require a minimum of 56 hours (or seven work days) per year of paid sick leave for employees of federal contractors and subcontractors. Under the draft executive order, the paid sick leave would allow an employee to take paid time off to care for themselves or a ...
Minnesota's minimum wage is based on the size of the employer as determined by gross sales, with large employers paying more than small employers. Under the amended 2014 ...
Since the ADA was enacted, the landmark law has been expanded by the enactment of the ...
The fifteen page document outlines the familiar multi-factor economic ...
The cases before the Supreme court involved state laws from four states Kentucky, Michigan, Ohio, and Tennessee -- that defined marriage as the union of a man and a ...
On June 15, 2015, the Colorado Supreme Court held that an employer was permitted to discharge an employee due to his licensed medical use of marijuana at home during nonworking hours. In the case, Coats v. Dish Network, the employee had worked for the employer for three years before he tested ...
A hiring policy based on looks is like nails on a chalkboard to an employment lawyer. So it comes as no surprise that the "Look Policy" of an Abercrombie & Fitch (A&F) store caused A&F trouble before the Supreme Court last week when the Court found in favor of the EEOC on a charge of religious discrimination against the clothing retailer. However, the decision has implications that reach beyond image-based hiring and sets standards of proof for religious accommodation claims and Title VII generally.
The Court's 8-1 opinion held that an employer need not have actual knowledge of an ...
Phase 1 of implementation ...
Fortune found, however, that employers have used the term in a way that could ...
The Equal Employment Opportunity Commission (EEOC) forged new ground earlier this month when it ordered the U.S. Army to pay damages to a transgender employee based on a discriminatory restroom policy. We have reported in past posts on the EEOCs increased enforcement focus on transgender rights in the workplace under Title VII of the Civil Rights Act of 1964, as well as the increased societal focus on this issue. (See, prior posts here and here.) The EEOCs recent April 1st ruling in Tamara Lusardi v. John M. McHugh, Secretary, Department of the Army reflects this trend and sets forth ...
When I present harassment training, I tell my audience that harassment is usually unlawful only when based on a protected-class status, such as race, gender, age, disability, etc. During the training, I often tell the story of the "equal opportunity harasser" the individual in the workplace who is a jerk to everyone and does not discriminate in picking the targets of his/her jerkiness (that's my technical term). This is the person who is a jerk to everyone. Because this person's behavior is status-blind, it doesn't violate discrimination or harassment laws.
Some Minnesota ...
As we previously reported, the EEOCs targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower courts grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employers background checks, because the EEOCs expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOCs background check ...
On February 23, 2015, the Department of Labor (DOL) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.
The changes to the rules are the result of last years U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (DOMA) which defined marriage for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined marriage for FMLA purposes as ...
In conversations with clients and employment law colleagues, I have dubbed 2014 the year of the employee handbook. In the wake of the passage last year of the Minnesota Women's Economic Security Act (WESA), Minnesota employers were required to update employee handbooks and practices to address new wage disclosure rights, new anti-discrimination protections, and, as applicable, expanded protections for pregnancy, parental leave, and the use of employer-provided sick time.
If certain Minnesota DFL Senators have their way, Minnesota employers may need to pull out those ...
Since the end of last year, we have been blogging about the rapidly-changing environment for labor relations and union organizing in light of new positions and rulings of the National Labor Relations Board.
As a follow-up to our recent posts (see here and here) I'm sharing my top-five list of preparation steps for employers. Of course, every employer has to assess its unique risks of union organizing activities and make reasonable choices about how much and where to invest in preparation and prevention. When you make that assessment and those choices, however, keep in mind that ...
It seems as though every other week brings news of a new social media hack. Last week, Crayola had hackers post inappropriate content on its Facebook page, and the official Twitter feed of U.S. military's Central Command was briefly taken over by ISIS sympathizers. Such incidents inevitably bring with them bad publicity, as well as a panicked scramble by the hacked entity to try to regain control of its account.
The problem is that having just one layer of password protection makes an account ripe for hacking. A potential hacker can either guess or learn the answers to secret questions to ...
A new year may bring new employment chances for Minnesotans with criminal records. Minnesota's new Second Chance law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of ones criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged ...
As we all get started on our New Years resolutions, employers should add one more to their list revising any email policies. In the waning days of 2014, the National Labor Relations Board (NLRB) issued an important email ruling that affects all employers, whether unionized or not. In the Purple Communications case, the NLRB held that non-management employees with access to their employers email system have a presumptive right to use that system during non-working time to communicate about union organizing or about other topics related to improving their wages and working ...
Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for ...
The National Labor Relations Board has been busy this holiday season. In the last few weeks, the Board has pushed ahead with its quickie election rules and changed the analysis it uses to determine whether to assert jurisdiction over faculty at religious institutions of higher education, and whether faculty members are managerial employees with a protected right to unionize. In addition, the Board ruled earlier this month that employers must generally permit employees to use company email systems for a variety of protected labor law activity, including union organizing. Then ...
Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labors regulatory agenda that you will want to track:
We've been on the look-out for proposed revisions to the Fair Labor Standard Acts (FLSA) white collar exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to modernize and streamline the existing regulations and increase the minimum salary for the white collar exemptions. The Department of ...
Todays EEOC . . . is pursuing many questionable cases through sometimes overly aggressive means and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOCs litigation tactics to be so ...
On Monday a federal jury in California awarded $185 million to a former AutoZone store manager who alleged that throughout her employment she had been discriminated against, demoted, and ultimately terminated because of her gender and in retaliation for complaining about discrimination. Rosario Juarez worked at an AutoZone retail store in San Diego from 2000 to 2008. Although she received promotions and advanced in positions within the store, these allegedly occurred only after she raised complaints about disparate treatment of women employees.
After Juarez informed the ...
Nevertheless, I am continuing to field questions about how employers can keep their workplaces free of the potentially deadly Ebola virus. In addition to being concerned about their employees well-being, these employers are mindful that federal and state OSHA laws require employers to take reasonable ...
In Minnesota, an employee has a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal leave, or vacation for voting leave. An employer who refuses, abridges, or interferes with an employees right to voting leave is guilty of a misdemeanor.
Here are some suggestions on managing ...
In our modern, ever-electronic, workplace, it continues to become ever-easier for dishonest employees to help themselves to their employers most sensitive and valuable assets through wholesale electronic copying of confidential, proprietary, and trade secret information. A recent example is a case of a former employee of a large medical device company who was recently indicted for criminal charges for stealing, via a thumb drive, the company's trade secrets regarding the design of a balloon-catheter system. According to the indictment, the employee then left his ...
I love wellness programs. I am a sucker for discounts of any sort, and I especially like the idea of rewarding healthy behavior. My bicycle has a tag that logs my work commute when I pass the electronic stations throughout the Twin Cities, and I smile every time I hear its gratifying beep.
So, I understand why employers like wellness programs. What's not to like about incentivizing healthy lifestyle changes while also lowering health insurance costs, decreasing absenteeism, and increasing productivity? As is so often the case, however, the devil is in the details. If wellness ...
If you do business with the federal government, chances are that you're feeling weighed down by the various new requirements placed on you over the past year. We've discussed these requirements in past posts here and here. That's why you may be surprised to hear that the US Department of Labor's Veteran Employment and Training Service (VETS) published a final rule last week that actually makes something easier for federal contractors. The rule modifies and simplifies the reporting requirements under the Vietnam Era Veterans' adjustment Assistance Act (VEVRAA) for federal ...
Indeed, just before the launch of the "Transparent" series, the U.S. Equal Employment Opportunity Commission (EEOC) filed its first ever lawsuits alleging sex ...
Another Sunday has come and gone and with it, somewhat predictably, another Vikings loss. What's remarkable about this week, however, is that the team was without its star player, Adrian Peterson. Mr. Peterson has been barred from team activities pending the resolution of his criminal indictment for child abuse. Mr. Peterson has admitted to disciplining his 4-year-old son with a wooden switch and injuring the child in the process. The Vikings organization has been widely criticized for its initial response to Adrian Petersons indictment. The Vikings initially planned ...
I was sitting by a campfire last night and, although it was a beautiful night, I could not help but notice that there are signs of fall everywhere. The leaves are beginning to change, the evening air had a slight nip, and darkness arrived much earlier in the evening. These reminders of fall mean that, because of Minnesota's participation in Daylight Savings Time, we need to think about the semi-annual ritual of the changing of the clocks. Each spring we Spring Ahead by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each fall, when Daylight Savings Time ends, we Fall ...
Wage theft is becoming a popular phrase in the media. A New York Times article recently announced that More Workers Are Claiming Wage Theft. Other news outlets are using the phrase to describe lawsuits brought by workers of a wide mix of employers, ranging from Jimmy John's to NFL franchises. Wage theft even has its own website.
At its core, wage theft is simply a catchphrase designed to draw attention to violations of wage and hour laws. The use of the term wage theft appears to be a relatively recent phenomenon. There were more references to wage theft in U.S. newspapers during the ...
Some popular online services made legal headlines this week. After years of litigation, a federal appeals court held that Yelp did not extort businesses by manipulating user reviews to coerce advertising purchases. While Yelp still faces other legal claims for false advertising and securities fraud, this case is significant given that Yelp's handling of user reviews has been widely criticized.
While Yelp was presumably busy celebrating good news, the ride-sharing service, Uber, received bad news on its efforts to expand its services overseas. A German court banned Uber's ...
The National Labor Relations Board continues to focus on employer social media policies and employee discipline for online activity. In a ruling this week involving Triple Play Sports Bar & Grill, the Board concluded that Triple Play unlawfully fired two employees for their response to a co-worker's Facebook post. One of these employees had only responded to the post by clicking the Facebook like option on the post. The Facebook post at issue related to the employer paying taxes, and the Board concluded the exchange about the post, including the like response, was a protected group ...
Last week we learned in Olson v. Push, Inc. that Minnesota's Drug and Alcohol Testing in the Workplace Act (DATWA) does not apply to a West Virginia employee working for a Wisconsin company. While at first blush this may seem like a no-brainer, there were facts in this case that made it a closer call. The plaintiff, Shawn Olson, applied for employment with Push while he was living in Minnesota. Push arranged for Olson to take a pre-employment drug screen, and for convenience sake, the test was arranged at a testing facility in Minnesota. Olson argued that because DATWA applies to employers ...
When I conduct employment trainings, I often caution executives and managers to think before they email. In my experience, people tend to be more casual and to use poorer judgment when they email than when they write a memo or letter that, by its nature, seems more formal.
Now, it turns out, that you better be careful before you snail mail too. In what some commentators are calling a game changing decision, the U.S. Court of Appeals for the Third Circuit recently held that a former employee could proceed to trial in her lawsuit under the federal Family Medical Leave Act (FMLA) based on her ...
I recently read an article about how college football recruiters are using twitter to screen out potential players for their teams. Its becoming a somewhat common practice for recruiters to monitor the twitter accounts of high school players that they are scouting to see whether any red flags are raised. Based on some of the inappropriate tweets, colleges have decided not to pursue particular players and, in at least one instance, have even withdrawn a scholarship offer. Some of these college coaches are encouraging high school coaches to teach players that they need to be careful ...
As a follow up to our last Week in Review, wage and hour claims are still making headlines this week. Another technology company, SpaceX, has been sued for allegedly failing to provide employees with required breaks or to properly pay employees for off the clock work. SpaceX also faces a separate lawsuit alleging that it failed to give former employees proper advance notice of their layoffs under California law. Another big legal headline this week is the announcement that a federal judge has rejected a proposed $325 million settlement agreement between Apple, Google, Adobe, Intel and ...
Its been an interesting week on the wage and hour legal front. One of the big names in social networking, LinkedIn, made headlines this week when the U.S. Department of Labor announced a settlement of allegations that LinkedIn failed to properly record, account for, and pay certain employees for all of their hours worked. You can read the link below for lessons learned from this settlement. In other news, a federal judge ruled that critical federal government employees who worked during last year's government shutdown may be owed additional pay under the Fair Labor Standards Act ...
Businesses that support the sharing economy continue to grow, as evidenced by this week's news headlines. Airbnb announced it is partnering with Concur, a commonly used expense account management software. This partnership, which will include Airbnb as an expense booking option within Concur's software, is expected to introduce Airbnb to the business traveler market. Airbnb is also making legal headlines, as users of the site expose legal loopholes. Read the link below to learn how a thirty day Palm Springs condo rental through Airbnb evolved into renters claiming tenant rights ...
Dust off your handbooks and rethink your employment policies the EEOC has just announced some significant changes in how it is going to investigate and litigate pregnancy discrimination claims.
In its first comprehensive pregnancy guidance update in thirty years, the EEOC issued new pregnancy discrimination guidance in mid-July. The updated guidance is effective immediately, superseding the prior guidance and addressing the application of many laws passed since 1983 - including the 1990 Americans with Disabilities Act (ADA) and the 1993 Family Medical Leave Act (FMLA) - to ...
Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn't only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year. And, for ...
Adjunct faculty members at the University of St. Thomas Monday voted overwhelmingly against union representation by the Service Employees International Union (SEIU) Local 284. Gray Plant Mooty's Labor Law and Higher Education Practice Teams served as labor counsel to St. Thomas in the union representation process. Since the union filed its petition for an election on May 23, GPM has been working intensively with the General Counsels office at St. Thomas to advise on the labor law, handling matters before the National Labor Relations Board (NLRB), assisting the university's ...
Some high profile companies, including two technology giants, made headlines this week after former employees filed lawsuits against them alleging discrimination and harassment. The case against Yahoo is likely to be particularly interesting, because the executive accused of harassment is alleging that she's being defamed by false allegations. You can read more about each of these lawsuits below, and you can revisit one of our recent prior posts for more information on the same topic. In other news from Silicon Valley, Google is making headlines this week for its work on ...
Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...
Last week a New York federal court certified a class of approximately 250,000 African-American job applicants in a race discrimination case against the U.S. Census Bureau. The plaintiffs allege that they were unlawfully excluded from consideration for door-to-door census positions due to arrest records that never resulted in convictions. In other instances, applicants were allegedly rejected based on convictions for minor crimes or convictions that were so old they should not have been considered. The lawsuit alleges that the Census Bureaus practices disparately ...
According to an article in The New York Times this week, high level executives make up the majority of tablet users in the workplace. That may change, though, as in the workplace tablet usage increases. It was predicted this week that, during 2015, manufacturer shipments of tablets will exceed shipments of desktops and laptops. This suggests more tablet use in the workplace going forward. While this is good news for the tablet industry, employers should be mindful of new data security issues in the headlines this week. A cyber forensic expert revealed this week that Google Glass wearers ...
We hope you had a happy 4th of July weekend! Last weeks news included more employees making headlines for their misuse of social media. The links below highlight three cases in which employees social media activity or misuse of company computers led to a loss of employment or litigation. For other recent headlines on the same topic, check out this link to our Week in Review from a few weeks back. These news stories are great reminders of why all employers should have a robust social media and computer usage policy in place. So, as you're digging back into your work post-holiday, consider ...
On August 1, 2014, Minnesota's new minimum wage law takes effect. The new law changes the states minimum wage requirements in several ways, including new definitions of large and small employers, progressively increasing rates over time, and indexing to inflation.
Minnesota sets its minimum wage based on the size of the employer as determined by gross sales. Under the new law, a large employer is one that has gross sales over $500,000 in annual business. Small employers are defined to have gross sales under $500,000 in annual business. Prior to the change, the gross sales ...
Technology's impact on privacy took center stage in news headlines this week. The New York Times and National Public Radio (NPR) both reported on alternative software tools to track employees in the workplace - one tool identifies inside security threats and another tracks employee productivity. Our blog post earlier this week also discussed this issue, highlighting both upsides to employee monitoring and some of the downsides and risks. In addition, there was big privacy news coming out of the United States Supreme Court this week. In a highly anticipated ruling, the Court ruled ...
Technology increasingly creates opportunities to monitor employee performance and workplace behavior. Monitoring is generally considered to be a tool that is likely to increase employee productivity and performance. Interestingly, though, the New York Times recently highlighted a Harvard Business School paper on the topic describing what it calls the Transparency Paradox.
Researchers conducted an experiment at a large factory in China, surrounding four of its 32 assembly lines with curtains to give a measure of privacy to the four lines. After five months, researchers found ...
Can you imagine receiving just a few work-related emails a day? Click the link below to read about the innovative communication solutions that companies are exploring to try to reduce the biggest distraction for their employees the volume of their inbox. Speaking of distractions, as we mentioned in last week's Week in Review, were in the midst of the 2014 World Cup. Much like March Madness, the World Cup is a month-long event that can create productivity concerns for employers. Since the 2010 World Cup, technology advances have created greater challenges for employers who seek to ...
Move over World Cup. Discipline based on employee social media activities is taking center stage this week. Well, maybe the World Cup has a few more headlines, but you can follow the links below to read four articles from this week about employees getting into employment trouble based on their social media activity. Also, a recent survey shows that 70 percent of employers have disciplined employees for on-the-job misuse of social media. One lawyer is making news, though, for his drastic protests of workplace discipline based on employee social media postings.
In a recent Week in Review post, we referenced a Wall Street Journal article about Zappos.com. It has abandoned job postings in favor of a radically different approach. Instead of posting job descriptions at online career sites, Zappos will maintain a social media network of Zappos Insiders. Through social media, people interested in working at Zappos will network and connect with current employees and provide (sometimes public) information about their skills and interests in hopes of being tapped to work in a specific job. As the Wall Street Journal article points out ...
For months, the discussion about cryptocurrency - primarily "Bitcoin" - has steadily increased in technology news. This week, Dish Network became the largest company to accept Bitcoin payments, following Tesla, Virgin America, and Overstock.com. Click the link below to read about how legislators and regulators are working to find a way both to classify and regulate this bold new world of virtual currency. Also, if trying to understand cryptocurrency makes your head hurt as much as mine, check out the link below to the high-tech headband that de-stresses your brain. At the retail ...
How did you commute to work this morning? Google's self-driving car prototype unveiled this week may soon change your answer. Google is hoping that, within the next decade, these cars may alleviate the most miserable part of the day for many Americans - their drive to and from work. Not only must Google win over American drivers, however, it also must woo the regulators in all 50 states. With only three states having laws on the books that permit some version of autonomous vehicles on their roadways, these cars are likely to require legal changes in addition to changes to the rules of the ...
While union membership has declined precipitously over the last few decades, union activity is now popping up in many new sectors. From 1983 to 2013, according to the Department of Labor, union membership dropped from over 20% of the U.S. workforce to a little more than 11%. The public sector, particularly in the areas of education and protective services, still has the highest unionization rate. In the private sector, the areas of utilities, transportation, and telecommunications represent the highest rates of unionization.
In recent years and months, however, we've seen a growth ...
If Minnesota employers recently detected vague but ominous tremors beneath their feet, it may have resulted from very recent activity coming out of the Minnesota state capitol. With one very short amendment to the Minnesota Human Rights Act (the "MHRA") that was signed into law by Governor Dayton on May 13, the legal exposure landscape for employment discrimination claims may have shifted radically. Specifically, the MHRA was amended to now grant a right to a jury trial for violations of that law.
It seems that society may be overdosing on public sharing through social media platforms. According to this week's headlines, the use of social login services has peaked, the controversial, anonymous app Secret is gaining users, and functional fashion that can disable your gadgets is expanding. Speaking of oversharing, we are approaching the long Memorial holiday weekend which means lots of time spent with family and friends. Whether you choose to share in person, through social media, or anonymously, have a safe and enjoyable holiday weekend!
Technology and the Workplace
Too ...
Large internet companies dominated the legal news this week. In a case against Google, the European Union's top court ruled that citizens may compel search-engine owners to remove certain types of personal information included in search results of the citizens name. While this ruling currently has no direct impact on privacy laws in the United States, the practical implications of the ruling for Internet companies are interesting and the ruling could potentially be used by practitioners outside the European Union to try to influence courts in other jurisdictions. Closer to ...
Also, in our tracking of There's an App for That, we feature a refrigerator that lets you know when you are out of milk, sunglasses that text you when you leave them behind, and a robotic lawn mower. If you're late with your Mother's Day gift, these would ...
The assault on internet security continues to fill news headlines this week. On the heels of the Heartbleed bug, Microsoft announced this week that a security vulnerability exists in all versions of Internet Explorer, with no known fix. This vulnerability is especially concerning for employers, who often do not control the browser choices of employees. Also, you can read below to discover the various ways that security breaches can affect our everyday lives, including jamming up traffic and "war driving" at your favorite free wi-fi spot.
Recent Week in Review topics are also back ...
By now, you've probably heard of the audio recording of racist statements by L.A. Clippers owner Donald Sterling that has gone viral. Yesterday, the NBA commissioner announced that Sterling will be banned for life from the NBA and fined $2.5 million, the highest fine permitted by the NBAs constitution and bylaws. It also appears that Sterling stands to lose his ownership stake in the Clippers.
Sterling's statements were recorded by a former girlfriend during a conversation in Sterling's home and later leaked to TMZ. There has been near-universal support for the NBAs swift and ...
Are you working in your pajamas right now? Or from the beach? If so, you may be one of the many Americans who telecommute. This week, a Forbes article discussed the rise of telecommuting, the reasons telecommuting is becoming more common, and why it's not for everyone. Meanwhile, a federal appellate court held that telecommuting may be required as a form of reasonable accommodation for a disabled employee. The court had previously held, back in 2004, that telecommuting was not a form of reasonable accommodation, but it explained that the technological evolution of the last decade now ...
The Equal Employment Opportunity Commission (EEOC) has recently issued an informal guidance on the issue of religious dress and grooming. The guidance comes in wake of several suits accusing employers of religious discrimination for refusing to accommodate certain types of religious dress or grooming.
Employers and their IT departments are always looking for ways to protect their data in this age of constantly changing technology. One new form of protection that may become available to employers is a "kill switch" on their employees' smartphones. A kill switch will allow a phones owner to remotely delete data and deactivate smartphones after a theft or loss. This week, Apple, Google, Samsung, Microsoft, and the five largest U.S. cell carriers voluntarily agreed to include the kill switch technology on all of their smartphones manufactured for sale in the U.S. after July 2015. There ...
As we previously predicted, the United States Citizenship and Immigration Services (USCIS) received more new H-1B petitions during the first week of April 2014 than there are visa numbers available for Fiscal Year (FY) 2015. USCIS received approximately 172,500 petitions for FY 2015, which is more than double the annual limit of 65,000 regular H-1B visas and the additional 20,000 visa numbers reserved for individuals who hold advanced degrees from U.S. institutions.
USCIS has already conducted a random computer-generated lottery of all of those petitions to determine which ...
A new labor agreement reached in France requires employers in certain technology and consultancy sectors to take steps to ensure employees are not plugging into work on their free time. France has had a 35-hour workweek for several years, and many believed it was being intruded upon by frequent out of office distractions caused by email and other technology. To combat this, French employers in these sectors are required to take steps to make certain that employees completely disconnect outside of their working hours.
Technology and the Workplace
How Google Humanizes Technology in the ...
The Star Tribune is reporting that Minnesota legislators have reached a deal that will increase Minnesota's minimum wage for most employers to $9.50 per hour by 2016. When the proposed law is passed and signed by Governor Dayton, Minnesota will join 21 other states and the District of Columbia in having a minimum wage that exceeds the current federal law minimum of $7.25 per hour. Currently, the state of Washington has the highest minimum wage, coming in at $9.32 per hour. The U.S. Department of Labor provides a summary of state minimum wage rates on its website:
In addition to state wage ...
Not all technology-based changes in the workplace involve social media and smartphones. This week's headlines and blog posts highlight other ways in which technology is changing the way we work. For example, employers are currently facing the decision of how to approach e-cigarettes in the workplace, and some employers are skipping the booth-filled convention centers and instead opting for virtual career fairs to find top candidates. We also have linked to an article below about employees who put your cybersecurity at risk and how to deal with them. Finally, learn how to craft email ...
Earlier this month, President Obama directed the U.S. Department of Labor to update the federal overtime pay regulations by revising the salary component of the executive, administrative, and professional exemptions. To qualify for these overtime pay exemptions (a.k.a. the white collar exemptions), employees must receive a minimum, guaranteed weekly salary of at least $455 and satisfy a duties test that requires them to primarily perform exempt-level tasks. The Presidents directive was aimed only at the salary component of the white collar exemptions. The currently ...
Overtime pay is a big theme this week following President Obamas directive that the U.S. Department of Labor work to update the existing federal regulations on overtime pay. The most prominent change that is expected is an increase in the $455 minimum weekly salary that must be paid for an employee to be exempt from overtime pay requirements under federal wage and hour law. Before any overtime pay change can be finalized, the Department of Labor must complete a rule making process that could take a year or longer. Speaking of overtime, March Madness has begun once again. Check out the links ...
Across the country, federal government contractors are preparing to meet next weeks deadline for starting to comply with new affirmative action rules. Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans. Those new rules become effective next week on Monday, March 24, 2014. Some of the new requirements imposed by the rules have a March 24th compliance deadline. Others can wait until a contractor currently in the middle of its affirmative action plan ...
Week after week, the blogosphere is full of discussions about new developments in the law involving social media. This week, the Equal Employment Opportunity Commission joined the conversation by holding a public meeting to discuss the interplay between social media and employment discrimination. The meeting provided helpful tips to employers, such as how to minimize the risk of a discrimination charge when conducting social media background checks. And, while we're on the topic, you can click on the link below to see if your social media policy is keeping up with all of the recent ...
Some things should be kept private. This week, the blogosphere provided several anecdotal reminders of this principle for both employers and employees. As we noted in an earlier post, one former employee learned the hard way not to violate a settlement confidentiality provision when his settlement unraveled as a result of a Facebook post. You can also read on below to learn more about the potential future of employee privacy law. Also, check out the link below about when and how employers can access an employee's social media account used for business purposes. Finally, we have ...
Confidentiality clauses are a standard provision in most agreements settling an employment dispute. Last week, a former preparatory school administrator learned the hard way that these provisions matter to employers and that violating a confidentiality clause can be costly.
An appeals court in Florida ruled last week that a Facebook post made by the former school administrators daughter violated the confidentiality clause in his settlement agreement with his old employer. As a result, the former administrator forfeited $80,000 of his settlement.
The former ...
In this era of hyper self-promotion and cyber networking, through the wonders of social media, former employees are commonly creating some of the most incriminating evidence establishing their violation of non-compete and non-solicitation agreements. When employees switch jobs, they now frequently broadcast that changed status to all of their contacts through social media platforms, such as LinkedIn and Facebook. Among those contacts, however, may be a significant number of customers or clients of their now former employer. If the employees previously signed ...
Facebook, iMessages, WhatsApp, Snapchat, Twitter, Instagram, Telegram, Confide, MessageMe, Popcorn, Glide, Tango, Viber, Whisper. . . . According to a recent post on the New York Times Bits blog, these are just some of the many different ways to message someone from your smartphone. So, what does this mean for employers? Among other things, it's probably time to update your technology and social media policy. Yes, again. With all of these mobile methods of communication, employers need to be aware that company information is likely traveling outside of old communication methods ...
R u liable 4 your employee's txt msg? In some situations, the answer may be yes. Two courts reviewed employee texting issues this week. The first court reviewed whether an employer can be liable for an employee's unauthorized disclosure of confidential health information via text message. The second court addressed whether a text message to a supervisor can qualify as a request for leave under the Family Medical Leave Act. These cases and the other articles linked below provide valuable insights for employers in determining best practices related to workplace ...
I have not followed NFL football for many years, but the recent NFL report about the Miami Dolphins definitely caught my attention. The report, prepared for the NFL by a New York law firm, concluded that Richie Incognito and other Miami Dolphin players inappropriately bullied and harassed offensive lineman Jonathan Martin through improper physical touching and by persistently taunting him with sexually explicit remarks about his mother and sister, and racist and homophobic slurs. Martin abruptly left the Miami Dolphins in 2013.
The flowers and chocolates that will be delivered to employee desks this week for Valentine's Day are a great reminder for employers to think about the best practices for approaching workplace romances. For more information on that front, read on below. Also, if this post is a reminder that you are behind on your Valentine's plans, check out the apps below for some ideas.
Meanwhile, love between lawmakers and technology is not in the air in Washington. A proposed bill to ban in-flight phone calls passed a committee vote this week and will now head to the House floor. In other news, a U.S ...
The Obama Administration announced this week that it will give employers with more than 50 but less than 100 employees one more year to comply with the Affordable Care Acts employer mandate. (But beware: You cant lay off workers to ensure that you fall below the 100 employee mark!) That means that these employers have until 2016 to provide insurance to full-time employees before being subject to any penalties for non-compliance.
As the world prepares this week for the start of the 2014 Winter Olympics, employers are being cautioned to address technology-induced liability. Many Fortune 500 companies have adopted policies banning employees' use of mobile devices while driving for work to avoid liability for a traffic accident caused by distracted-driving. The importance of workplace internet policies is also in the news this week, with an emphasis on policies that address an employers duty to report child pornography on a work device. You can read below about how to fight against technology-related ...
As Americans gear up for Super Bowl XLVIII, we've gathered some articles below to help you prepare for the big game and to consider the games potential impact on the workplace. You can read below about how one employee's team pride led to him being fired and about how big Super Bowl parties on Sunday night might lead to low workplace productivity on Monday. For those of you who haven't been following professional football throughout the season, be sure to check out the Super Bowl talking points below that you can use around the office. We also have all the app links below that you'll need for the ...
Last year U.S. Citizenship and Immigration Services (USCIS) received more than 124,000 applications for new H-1B specialty occupation visas for foreign professionals during the first week of April. As a result, USCIS implemented a computer-generated lottery system to allocate the 65,000 regular H-1B visas and the 20,000 additional H-1B visas reserved for foreign nationals with a masters degree or higher from a U.S. institution. Although there were predictions of high demand in 2013, some employers were not prepared given that the cap had not been reached for many months in the two ...
This week's headlines charged employers with preserving and protecting data in the workplace. This advice is timely given that this week is Tax Identity Theft Awareness Week, a time when employers are reminded to safeguard employee social security numbers to reduce identity theft risks. In other news, we've provided links below to the top 10 electronic discovery developments and trends from the past year. At the top of the list are the growth of Bring Your Own Device (BYOD) policies in the workplace and how work-related text messaging is causing courts to require employers to preserve ...
Alabama State University is taking flak over the employment agreement it recently inked with its new president, Gwendolyn Boyd. No one seems concerned with the size of Dr. Boyd's salary and benefits. It is the clause restricting her ability to have slumber parties that is turning heads. The agreement provides that so long as Dr. Boyd is president and a single person, she shall not be allowed to cohabitate in the presidents residence with any person with whom she has a romantic relation.
Given the role college and university presidents play in wooing big donors and serving as chief ...
Brrrrrrrrrrrrrrrrr . . . it's cold out there! The recent cold snap that has swept the nation is affecting the workplace and technology. The cold weather serves as an important reminder for employers to have an up-to-date severe weather policy. In addition, before you email your employees from your smartphone at the bus stop to tell them that they don't have the day off work, check out NPR's reminder that your phone doesn't like the cold weather any more than you do. But don't worry; technology won't completely fail you this winter. We have a link to the top winter weather apps. Stay ...
While many Toronto residents spend their time wincing at the infamous antics of their elected (and possibly soon-to-be reelected) mayor, Rob Ford, I've been imagining what a Minnesota employer would do if he was its employee or, worse yet, a supervisory employee - not elected by the people. Are you cringing yet?
Fire Him! would likely be a common refrain. But for what exactly? His admitted use of crack cocaine? The death threats? The sexual comments? Knocking down a councilwoman and the viral video aftermath? There seems to be so much to choose from. Even when a termination ...
Another new year has arrived. Perhaps you have promised to make it a year of getting organized, getting fit, or giving more to charity. On the technology front, social media is promising to make it a year of evolving workplace privacy law. Legislative bodies, courts, and administrative agencies are expected to consider a number of interesting legal issues, such as employer access to employees' or applicants' social media and email accounts, administrative agencies' access to employers' email servers, and employees' rights to communicate online about their terms and conditions of ...
Target Corp's data breach has been big news this holiday season, with as many as 40 million holiday shoppers across the nation exposed to potential credit and debit card fraud. According to the Identity Theft Resource Center, which tracks U.S. data breaches, the Target breach was one of over 600 data breaches in 2013. In our increasingly digital world, data breaches are a growing risk with many potential causes, including system failures, human error, employee misconduct, or outside theft.
The holiday season is a time for reflection, including reflection on our technology habits. Many individuals are aiming to be truly home for the Christmas holiday by engaging in digital detox plans and setting their smartphones and other mobile devices aside to spend time with family and friends. Disconnecting from workplace technology during non-work hours is also becoming a trend at other times of the year, and many employers are encouraging this trend. Another take-away from this holiday season may be to reflect on what your shopping habits can teach you about hiring ...
I sleep with Siri, and I'm not alone. According to a Pew Internet and American Life Project study, 44% of Americans sleep with their cell phone, many of which contain a work email account. Like that critical mass, I want to be connected and to be able to respond to a client if they email at 11:59 p.m. Because attorneys are exempt under wage and hour law, they don't have to be paid extra above and beyond our salary for emailing in the wee hours. That's not, however, the case with non-exempt employees. For employers that don't have effective policies and policing of after-hours technology ...
A recent trial experience provided an extraordinary lesson on the significant legal exposure employers face when hiring away employees from a competitor. I recently completed a jury trial in which my client obtained a $22.7 million verdict against a competing company that had hired away two of my clients employees who had secretly taken numerous computer files belonging to my client and then used them for the benefit of their new employer. Although there ended up being many actions of the new employer to criticize, I believe that the most egregious one was the new employers failure to ...
The Supreme Court announced last week that it will hear two cases in which for-profit businesses are challenging the Affordable Care Acts (ACA) contraceptive mandate on freedom of religion grounds. The key issue before the Supreme Court will be whether or not corporations have religious rights.
Many employers have implemented direct deposit payroll systems to reduce the transaction costs associated with paper payroll checks and the risks of the loss or theft of paper checks. A payroll card is an increasingly popular method used by employers to provide for the direct deposit of wages, particularly for employees without a deposit account at a financial institution. A payroll card is a debit or prepaid card onto which the employer loads an employees wages. The employee may then access those wages through withdrawals of cash at an ATM machine or by making purchases using the ...
This week, Dropbox unveiled its new "Dropbox for Business" initiative, which gives employees a greater ability to establish digital work-life balance. The product includes two data folders - one for business data and one for personal data so that businesses and workers have the ability to segregate digital work and personal data. The Dropbox announcement came on the same day that Amazon unveiled a similar product. Airbnb also frequented the headlines this week, both for its new, streamlined app and for the scrutiny its vacation and home rental business is under from regulators. ...
From communication methods to office space, technology continues to affect workplace norms. During the week of November 4th, for instance, the U.S. Supreme Court heard oral arguments in a case involving the line between technological gear and clothing in the workplace. In the case, steelworkers are seeking to be paid for the time spent putting on flame-retardant jackets and pants, protective leggings, Kevlar sleeves, gloves, steel-toed boots, hard hats, safety glasses, earplugs, and hoods. Under the federal wage and hour law, an employer must pay employees when they engage in a ...
In the last few years, driving safety initiatives have focused on the dangers of texting while driving. With the rapid evolution of technology, however, new dangers seem to be emerging all the time. Someone received a citation for driving while wearing Google glasses. Its anyones guess what may be next. Twitter was also front and center this week. The company introduced a new photo preview in its Twitter feeds, Starbucks created gift cards that can be sent via Twitter, and two companies sued Twitter for over $100 million dollars for allegedly hiring them under false pretenses to ...
Its Halloween, and we employment lawyers would be remiss if we didn't comment on the ways that workplace Halloween costumes can sometimes go wrong. The negative flack that celebrity Julianne Hough is receiving in the news for her blackface Halloween costume highlights the reality that, while Halloween revelry at work can be great fun, it can also come with a risk that an employee crosses over a racial, cultural, political, or other line and offends someone.
The internet can be an invaluable work tool, providing ready access to information and resources essential to getting a job done. The internet can, however, also be a huge distraction, cutting into productivity both at and away from work. For instance, this week a study showed that [f]or every minute that [we] spend lazing on the computer, Americans spend approximately 16 fewer seconds working, seven fewer seconds sleeping, six fewer seconds traveling, four fewer seconds doing household chores, and three fewer seconds educating themselves. Spending time on the computer also means ...
The settlement may be good news to Lady Gaga ...
Ive had succession planning on my mind this week following the release of a research poll that indicates that about half of older Americans are delaying retirement plans to work longer. The poll, which was conducted by the Associated Press-NORC Center for Public Affairs Research, indicates that over eighty percent of older Americans plan to work during their retirement years and almost fifty percent expect to delay retirement. Eleven percent of those surveyed indicated they dont expect to ever retire. These survey results may stem from a number of factors. The recent recession has ...
New federal and state laws are continuing to impact our relationship with technology and online resources. This was recently illustrated by the roll out of web-based health insurance exchanges under the federal Patient Protection and Affordable Care Act. The roll out did not go smoothly, and the news was filled with stories of technological glitches and errors that, to some extent, took center stage over the continued partisan split over the substance of the law. At the state level, California passed a law that gives people under the age of eighteen the right to have personal ...
This week the government shutdown dominated the news. Many people were told not to come to work, national parks, monuments, and recreational areas were closed, and access to some government services was limited or eliminated completely. In the midst of the shutdown, people have expressed their outrage on Twitter, while posts by various members of Congress on Facebook have received thousands of likes and comments. Even NASA took to Twitter to announce that it would no longer be able to tweet and then promptly suspended its account. All this activity on Twitter took place as the company ...
Lawyers often say that bad facts lead to bad law. Cases with outrageous fact patterns can drive a judge or jury to stretch the law and make outcome-based decisions in order to provide relief to a sympathetic party. Lawyers hate these types of decisions, because they can negatively skew the developing law based on one bad situation without enough consideration being paid to the legal implications for other, future cases.
This week, everyone seemed to have an opinion about Apples new iOS 7 software for iPhones whether they loved its new features or were frustrated that it took too long for data to download. While many people were absorbed in their phones, social media also reached another milestone. For the first time, research displayed on the Tumblr website was cited in an amicus brief to the U.S. Supreme Court. Elsewhere, an investigation by the New York Attorney General revealed that many of the reviews on websites such as Yelp are fake. Nineteen companies that have been found responsible for arranging ...
Last week, this blog featured posts about the growth and reported benefits of workplace surveillance, as well as some of the legal risks that can arise from surveillance. Workplace surveillance can run the gamut from conducting targeted email searches to investigate potential misconduct by a particular employee to using complex software programs designed to detect theft, cyberloafing, or inappropriate internet usage by anyone in the workforce. As discussed in our previous posts, surveillance may create opportunities to decrease employee dishonesty and improve ...
It is so easy to press that like button on a Facebook post by your best friend, your coworker, or your favorite company. In that quick second, it is unlikely that a person could contemplate all the potential legal and Constitutional issues that may be wrapped up in such an action. This week, however, the Fourth Circuit Court of Appeals held that liking a Facebook post is Constitutionally-protected Free Speech. In the case, six employees were fired after they supported a candidate for sheriff by liking him on Facebook. The Court found that liking him was equivalent to showing political ...
A couple of recent articles in the New York Times and The Atlantic magazine caught my attention. Although the articles are from very different perspectives, both articles made me think about dishonest employees and how employers deal with them.
Health Exchange Notice Due to Employees by October 1
What is the exchange notice?
This week, people around the world remembered the anniversary of 9/11, and President Obama continued to contemplate actions against Syria. Even passive users who may not read the newspaper experienced these events through technology and through hashtags like #neverforget or #syria. Also this week, in the midst of somber news and remembrance, a distraction emerged in the form of two new iPhones featuring new colors and fingerprint identification technology. For every new form of technology, however, there is also a spate of new lawsuits. This week, for example, a U.S. district ...
While making a presentation to clients yesterday, I was reminded of the practical and logistical problems many employers face when trying to complete the I-9 process for remote employees. One of my presentation hypotheticals involved a scenario in which a Minnesota company hired a California employee and wanted to complete Section 2 of the I-9 by having the new hire send scanned copies of her identification and employment authorization documents by email. Sounds like a logical and modern approach to I-9 completion, right? Unfortunately, it doesnt comply with I-9 ...
The Labor Day holiday is intended to celebrate the contributions of Americas working class. That turns out to be most of us, given the relative few who are independently wealthy and the decreasing percentage of Americans who are currently unemployed. Perhaps this Labor Day week is also an appropriate time to reflect on what makes workers feel valued, given that those who feel valued are likely to be more productive and to stay in their jobs longer. As noted in the Harvard Business Review Management Tip of the Day for August 9, 2013, When employees feel valued, they are more satisfied ...
Given a recent uptick in court rulings enforcing class action waivers, it may be time to revisit whether your company prefers to resolve disputes with employees in court or through arbitration. Class action waivers in arbitration agreements have been gaining in popularity with employers since the U.S. Supreme Court upheld an arbitration clause containing a class-action waiver in the AT&T Mobility v. Concepcion case in 2010 and again this year in the American Express Co. v. Italian Restaurants case. These Supreme Court cases involved consumer disputes, but numerous employers ...
Electronic cigarettes or e-cigarettes have been in the news and are apparently growing in popularity. The New York Times recently published an online debate on the potential health benefits of e-cigarettes and their potential regulation. Other news outlets have published similar articles. (see, e.g., here, here, and here). Many employers are wondering how to react to employees who want to use e-cigarettes at work.
E-cigarettes are battery-powered devices that allow users to inhale nicotine vapors from a heated liquid. Proponents of e-cigarettes argue that they are a safer ...
This week, as in many past weeks, a lot of media attention has been paid to privacy: creating it, protecting it, and invading it. Employees are reported to have been fired or disciplined for recording, revealing or posting the wrong thing. Hackers are worried about government surveillance of their activities, while homeowners are worried about hackers infiltrating their home security systems. Electronic health information systems create new opportunities for health-enhancing information sharing, while simultaneously creating risks to patient privacy and safety ...
Attorneys often counsel and represent clients as they deal with the consequences of their online misdeeds. This week, for example, a fired employee sued his former employer, claiming that his co-workers shocked him with a Taser and posted a video of the Taser session on YouTube. Sometimes it is the attorneys themselves who get into online trouble, and who face discipline for their conduct. It was reported this week that one attorney was disciplined after hacking into a fellow attorneys email account, and another attorney was suspended from the practice of law for five years after ...
Some people spend more time with their smartphones than with their friends. This attachment to technology has a number of implications, and not just for a persons social life. This week the Fifth Circuit Court of Appeals held that the government can compel a cellphone company to turn over phone location data without establishing probable cause. The court found that location data was admissible as a business record. Elsewhere, Justice Department lawyers asked the Supreme Court to consider a First Circuit Court of Appeals decision that held that police need a warrant to search the ...
Last week, attorneys general of nine states signed a five page letter addressed to the Equal Employment Opportunity Commission. The letter sharply criticizes the EEOCs guidance related to employers use of criminal background checks, and calls the EEOCs position misguided and a gross federal overreach. It accuses the EEOC of attempting to expand Title VIIs protected classes to persons with conviction records.
As clearly evidenced by the flood of social media attention paid to the birth of the United Kingdom's royal baby this week, technology not only disseminates information faster but also makes it hard to avoid. Also reported this week, users are downloading anti-distraction apps to block social media because they cannot stop themselves from wasting time, and companies are developing new gesture recognition technology that eliminates both keyboards and touch screens. The 9th Circuit Court of Appeals also contributed to the growth of information filters this week when it held that a ...
As Edward Snowden continues to seek asylum, privacy issues remain center stage in the world of technology. Universities are rethinking their network security as they face cyberattacks from around the world. The University of Wisconsin, for example, receives almost 100,000 hacking attempts a day from China alone. Yahoo also won a privacy battle this week. In 2008, it filed objections to the NSAs program which required Yahoo to release user data without a warrant, and this week the Foreign Intelligence Surveillance Court declassified Yahoos 2008 briefing, shedding light on its ...
Last week, I presented an employment law update at my firms annual Health Law Institute. While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers. I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments. I thought the readers of this blog might appreciate a list too. So here are some important employment law compliance to-do items:
1. Post the new FMLA poster, update your FMLA ...
Effective August 1, Minnesota employers with 21 or more employees may have to change their sick leave policies. A change to Minnesota law, enacted during the 2013 legislative session, requires employers that offer paid sick leave benefits to allow the use of those benefits for absenses related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent. Previously, the law had required employers to allow use of paid sick leave only for absences due to the employee's own illness or the illness or injury of a child. The new legislation, which amends a ...
When news broke about the NSA surveillance program, privacy became a hot topic. This week, the debate about how to maintain privacy in the digital age continues with Facebook's recent release of its Graph Search function to the general public. Seemingly inconspicuous information on a Facebook user's profile can now be quickly and easily pulled up in a public search. While the implications of this function are yet to be seen, it will likely create an additional wrinkle in how employers respond to employee social media use.
Other technology news this week focused on the interaction ...
Whether your plans for the Fourth of July weekend involve working or celebrating, odds are, you'll be using technology of some sort. If your work involves employee recruitment, you may be part of the growing trend of using Facebook to search for new hires. If you live in the San Francisco Bay area, you may be using social media to follow the effects of the BART strike and plan accordingly. For those able to take time off, there are a number of new apps that may add convenience or provide entertainment to your leisure time. You can take better pictures of fireworks, read up on Fourth of July ...
The Obama Administration announced on the afternoon of July 2 that it would not penalize employers that do not provide health insurance in 2014. The Affordable Care Act initially required that all employers with more than 50 employees provide coverage to workers or pay significant fines, beginning in 2014. The Treasury Department now says that it will postpone its implementation until 2015, largely due to employers' concerns. Stay tuned for more specifics as the Treasury Department clarifies this and as employers figure out what this means for them going forward.
For an E-Benefits ...
Click here for a GPM eBenefits Alert on how yesterdays United States Supreme Courts decisions on same-sex marriage will impact employee benefits.
As of July 1, 2013, the Federal Motor Carrier Safety Administrations Hours-of-Service Regulations relating to drivers of a commercial motor vehicle (CMV) are changing. These changes require some significant advance planning for employers of those who drive a CMV.
Under Title VII, employers may be strictly liable for harassment by a supervisor. Employers may also be liable for harassment by a co-worker, but only if the company knew or should have known of the co-workers conduct and failed to take prompt and appropriate corrective action. A question that remained disputed until the Vance decision was who qualified as a ...
Summer has finally arrived. While some are outdoors splashing in the lake or pool, there are others who prefer to spend their time making waves online. This week, for example, we bring your stories of a Wendy's employee who was fired after a picture of him drinking directly from a Frosty machine went viral, and a Welsh civil servant who received a 12 month promotion ban due to his "inappropriate comments" on social media. In Ohio, even the police are taking to Facebook, and one city police chief posted ridiculing comments about the city's lawbreakers. In Minnesota, Amazon caused a stir with ...
What do discount retailer Dollar General and luxury automobile manufacturer BMW have in common? No, they haven't started selling BMWs at Dollar General stores. Rather, both companies were sued last week by the Equal Employment Opportunity Commission (EEOC) based on the agency's allegation that their criminal background check policies disproportionately impact black job applicants and employees. These are the first lawsuits brought by the EEOC since the agency issued guidance back in April 2012 (blogged about here) requiring employers to engage in an individualized ...
The modern workplace this week brought us stories of disability fraud, job recruitment with video games, apps to fight procrastination, and distracted driving. Who says work is boring?
In North Carolina, a postal worker was indicted for disability fraud when her appearance on a nationally-televised game show revealed her lifting and grabbing capabilities. She had been collecting workers compensation checks since 2004 for an injury that supposedly prevented her from lifting and grabbing, among other things. In the wired workplace, both employers and employees are finding new ...
Technology news was dominated by reports of government snooping this week. The Guardian published a top-secret court order forcing Verizon Wireless to turn over "telephony metadata" (i.e. call details) collected on all of its customers making calls to, from, or within the United States. The Obama Administration defended the order as a counter-terrorism measure, and late Thursday, reports began to surface that the data was used to foil a planned terrorist attack.
Individuals used technology to act in ways that could be seen as offensive, discriminatory, or maybe both, depending on ...
Vance v. Ball State University: This case involves the definition of a supervisor for purposes of harassment claims under Title VII of the Civil Rights Act. Under current law, employers may be held strictly liable for the acts of supervisors but harassment by a co-worker will not create liability unless the employer knew or should have known about the harassment. This decision will clarify a ...
In an interesting convergence of events, two Minnesota employers recently found themselves on the wrong side of Minnesota's marital status discrimination law just as Minnesota is preparing for same sex marriages to become legal on August 1, 2013. These recent cases serve as an important reminder that Minnesota law prohibits employment discrimination based on marital status, including discrimination based on the situation or identity of an employees spouse. Minnesota employers should also be mindful that, come August, both opposite sex and same sex spouses will be protected by ...
The pocket dial: it happens to the best of us. Usually it ends in muffled silence, but, as the events of this week show, sometimes it can result in major life changes, like unemployment or prison time. Take, for example, the two Florida men featured below. One, working as a pizza delivery driver, pocket-dialed a recent customer and left an unintended voicemail full of racial epithets. He and the coworker he was talking to both lost their jobs. A second Florida man betrayed by his backside this week pocket-dialed 911 and inadvertently recorded a message about his intention to murder another ...
Four different kinds of employees are causing employers grief in the modern workplace this week.
The Workaholic: while employees' constant connection to work via smartphones may seem like a great thing, employers need to ensure that they are following wage and hour laws in compensating employees for this time. The California Public Agency Labor and Employment Blog explains how after-hours, work-related smartphone usage can get employers into trouble if they are not careful.
The Troublemaker: in a recent NLRB memo, the Board found that an employer could legally terminate an ...
There was a little something for everyone in this week's technology developments. Colorado adopted a social media workplace privacy law, joining 13 other states with similar laws that limit employers' access to employees' passwords and other personal data. Privacy doesn't fare so well, however, according to new reports that forensic examiners have increased their ability to recover all kinds of things cell phone users thought were "deleted," including incriminating pictures taken with the Snapchat app. All sorts of workplaces are now able to accept mobile payments, which is a ...
Last week the Minnesota House of Representatives passed Ban the Box legislation, which prohibits private employers from asking applicants about their criminal record until after they have been selected for an interview. The bill, Senate File 523, passed easily on a 107-26 vote, with 35 Republican Representatives joining all DFL Representatives voting in support. Governor Mark Dayton has indicated his support and is expected to sign the bill into law.
With passage of this legislation, Minnesota will be the third state to expand Ban the Box to private employers. Proponents believe ...
The newly revised Form I-9 went into full effect this past week on May 7, 2013. USCIS rolled out the new form earlier this year, but gave employers a 60-day grace period to transition. As of last Tuesday, United States Citizenship and Immigration Services is no longer accepting the previous version of Form I-9. Employers must use this new form for all new hires and reverifications going forward, but they do not need to complete a new Form I-9 for existing employees with a properly completed form on file. For more information on the changes to the new Form I-9, please visit the previous blog ...
Don't text a texter -- at least not one who's driving. A New Jersey court of appeals is currently considering whether a young woman who texted an individual she allegedly knew was driving could be held liable for the damage arising out of that distraction. If this theory succeeds, it could give employers one more thing to worry about, and may affect how employers communicate with traveling employees. While not illegal yet, it's still a good idea to avoid texting employees you know are driving, especially considering the costs to employers of distracted driving. Better yet, have your ...
A recent article in The Chronicle of Higher Education highlights the plight of ...
Another week passes, and another social media password protection law has been enacted. Arkansas is the latest state to ban employers from obtaining workers' social media login information.
The NLRB has also been busy dealing with social media issues. In a recent decision, an ALJ found that the University of Pittsburgh Medical Center's social media policy violated Section 7 of the NLRA because it prohibited employees from describing any affiliation they had with their employer in their social media posts. In another case, the Board ruled that Bettie Page Clothing violated Section 8 ...
From an employment law standpoint, I think the more interesting question is: should a boss friend an employee? I decided to conduct an informal survey of my peers here at The Modern Workplace. I asked my colleagues if it was okay for a boss to friend an employee, and the resounding answer was NO. Why not? There are both legal and personal reasons why friending an employee, even if you do not ...
The dance between cybersecurity proponents and privacy rights advocates continues. Today, the U.S. Senate Committee on Commerce, Science, and Transportation announced that the Senate will not take up the House version of the Cyber Intelligence Sharing and Protection Act (CISPA). Picking up on some of the public's criticism of the bill, a Senate spokesperson expressed concerns that the House version does not provide sufficient privacy protections. The Senate will be drafting its own version of the cybersecurity bill.
Employers may want to keep an eye on how this legislation ...
The bill addresses many aspects of the U.S. immigration system, but in the interest of brevity, I will limit my comments to a few key parts of the bill that directly impact employers.
Under the proposed legislation, all ...
I can invade your privacy; you just cant invade mine. It seems like everyone wants to use the latest and greatest technology, but no one wants to suffer the consequences when that same technology is used in ways that harm their interests. Workers want to use social media to have their say about bad bosses, lousy customers, or unfair rules, but don't like it when their employers see the results and react badly. Employers want to protect their businesses and customers from the comments of employees, but also want to use technology to catch employees engaging in all kinds of bad behavior. This ...
The United States Supreme Court will be deciding an important affirmative action case this term and has now agreed to hear a second, similar case. These are not employment cases, but the Court's decisions will still be of interest to those of us who advise employers and who have followed the twists and turns of affirmative action over the years. Some observers think that the Court's decision in Fisher is going to signal the end of affirmative action once and for all. Others predict a divided Court and decisions so narrowly tailored that they have no real impact on the future of affirmative ...
This week, employers were reminded of some of the perils of going digital, including increased vulnerability of confidential information. Three different companies experienced three different types of a data breach. Merrill Lynch claims its information was breached by two former employees who used their company passwords to steal customer contact information in an attempt to get the customers to leave with them. Winn-Dixie was caught up in litigation after a class of employees discovered that their personal employee data was improperly accessed through the company's employee ...
Many employers experience frustration and challenges when trying to obtain meaningful background check information. The cost to replace a terminated employee is high, and can add up quickly for an employer in a high turnover industry such as retail. Employers are wise to develop strategies, tools and resources that help them to recruit qualified workers who will be loyal and trustworthy employees. Background checks are common, and most employers rely on outside vendors to do them. Background check vendors - companies that specialize in gathering and reporting on criminal ...
Utah joined the growing number of states that have passed a ban on employers accessing employees' social media accounts. Washington is debating a similar bill; its version, however, has an exception that would allow employer access during a company investigation. In a similar vein, employers using employee-theft-tracking databases to screen potential hires may ...
Later this month, Ill be giving a presentation on employee handbooks. This has me thinking about what types of policies should be included in a handbook and which items might be better addressed separately and outside of the handbook. In considering technology and social media policies in particular, I've concluded that it may be best to maintain these policies as stand-alone policies outside of the employee handbook and, in some cases, to incorporate technology and social media requirements into individual employment agreements.
Since the advent of social media, we've seen the problems it can create in the workplace. Now, individuals looking to avoid such problems can use the new app FireMe! It has a "Check Yourself" tool that analyzes a username's tweets and calculates the likelihood that the tweets will get the author fired. We're guessing it doesn't come with a guarantee.
The government is also rethinking how the internet can ...
The Supreme Court hears arguments today in the second of two landmark cases involving the national same-sex marriage discussion. The arguments are timely in the state of Minnesota, where an amendment to define marriage as solely between a man and a woman was defeated this past November and a same-sex marriage bill was recently introduced in the state legislature.
As the Supreme Court wrestles with the constitutionality of the Defense of Marriage Act and California's Proposition 8, it is important for employers in Minnesota to remember that although Minnesota does not recognize ...
With more and more of our lives occurring online, it is often difficult to keep sensitive information private. This week, there are indications that this task is not likely to get easier anytime soon. There has been an uptick in hacking activity on many fronts. On the employment front, an ex-Reuters employee is facing federal charges for giving the hacking group "Anonymous" a username and password to access the company's system. If convicted, the employee could be imprisoned for up to 30 years and be fined up to $750,000. On the election front, a recent grand jury report shows that a ...
The Minnesota Legislature is in full swing, and as always, employers will want to monitor the proposals under consideration at the Capitol. Bills that may impact employers include:
- Health Insurance Exchange. Governor Dayton has just signed legislation creating Minnesota's health insurance exchange, which is a significant part of the federal health insurance overhaul.
- Minimum Wage Increase. Lawmakers appear to be moving forward with House and Senate bills that would increase Minnesota's minimum wage for most employees to $9.95 or tie the required wage to inflation. Currently ...
In the news this week has been a story about a decision by a university to search email accounts of several staff members in an effort to determine the source of a leak to the media. Like many employers, the University did not seek the employees permission before reviewing their emails. The employees whose emails were reviewed were not aware of the University's actions until earlier this month.
The USCIS has published a Notice in the Federal Register announcing the release of the revised Form I-9. Employers should begin using the revised form immediately. There is, however, a 60-day grace period before penalties may be imposed for using a previous version of the form.
The final changes to the form include additional instructions, an expanded two-page layout, and new data fields for employees to list their email addresses and phone numbers. Employers should be sure that they update their policies and handbooks to reflect the changes in the revised form and instructions. In ...
Variety is the spice of life, even when it comes to the legal implications of technology. This week offers a good illustration of the many different areas of the law that technology can impact. Here are some current examples:
Employment Law: A New Mexico judge who violated the court's computer and Internet use policy with his "excessive and improper" instant messaging during court proceedings was forced to resign. A Penn admissions officer who shared on Facebook snippets of admissions essays has sparked debates about online sharing of employment information.
Securities Law: The ...
We hear a lot about individuals' social media accounts getting hacked, but the events of this week remind us that company social media accounts are vulnerable as well. The Twitter accounts of both Burger King and Jeep were broken into and changed. Burger King's profile picture was changed to a McDonald's logo, and the account tweeted that McDonalds had bought Burger King. Jeep's account was changed to look like it was a page for Cadillac and to state that Jeep had been sold to Cadillac because it caught its employees doing pain medication in the bathroom. Both accounts appear to have been ...
This week, both individuals and companies alike felt some pain as the result of their love affair with technology. A Michigan nurse and a Washington barista both lost their jobs because of over-sharing on social media. The nurse was fired for FMLA fraud after the hospital where she worked saw Facebook pictures of the Mexican vacation she took while still on leave. The barista was fired for using his blog as a forum to insult his ...
I don't know if it's the cold, long winter we've been having, or just the increasing popularity of social media, but this week has been chock-full of internet-induced workplace drama. Take for example, the Applebee's server who was fired after posting a picture of customer's receipt on Reddit. The customer happened to be a pastor whose large dining party had incurred an automatic gratuity charge. He crossed out the added gratuity and wrote "I give God 10%, why do you get 18?" After the waitress shared a picture of the receipt -- signature and all -- with the online community, the pastor ...
Recent Department of Labor statistics indicate that the majority of employers who have breached Fair Labor Standards Act ("FLSA") provisions related to breastfeeding mothers have failed to provide an appropriate space for new moms to express milk. The FLSA was amended by the 2010 Patient Affordable Care Act to require employers to provide reasonable break time and a private space for a nursing mother to express milk for one year after the child's birth. All employers are expected to comply with the law, but employers with fewer than 50 employees are not subject to the requirements if ...
Example #2: the HMV employee who hijacked the ...
Do you have a constitutional right to Facebook? Maybe, according to the 7th Circuit. Yesterday, the appellate court struck down an Indiana law which prohibited sex offenders from joining social media sites. Citing the broad language of the ban, the court held that it was an impermissible violation of sex offenders' First Amendment rights.
Speaking of the First Amendment, earlier on Thursday, a French judge found that Europe's ban on hate speech trumps America's free speech guarantees. The suit was over whether Twitter needed to hand over the identities of people using anti-Semitic ...
The 1st Amendment protects freedom of speech, but that doesn't mean that employees' speech is always protected from employment consequences. Case in point: the tenured New Jersey first-grade teacher fired for referring to her students as "future criminals" in a personal Facebook post she wrote at home in her free time. The teacher challenged her termination on 1st Amendment grounds and appealed to the New Jersey Court of Appeals. The court recently rejected the 1st Amendment claim, finding that her "personal dissatisfaction" with her job did not address a matter of public ...
This week in three words: hacking, tracking, and attacking.
Hacking: as if worrying about having your cell phone or computer hacked wasn't enough, now recent research from Columbia University indicates that your office phone might also be at risk. The study discovered that at least 15 models of the Cisco Internet Protocol telephone have software that could enable a hacker to turn on a microphone, webcam, or other feature of the phone without the user's knowledge.
Tracking: a Texas school using Radio Frequency Identification chips to track its students may continue doing so after a ...
This week, states across the country were determined to start off the new year with their best foot forward. High on their lists of priorities? Protecting the rights of online users. In Michigan, the Governor signed into law the Internet Privacy Protection Act, which made Michigan the fifth state (behind Maryland, Illinois, California, and New Jersey) to prohibit employers from requesting social media sign-in information from their employees. In Arizona, the legislature is considering a bill that would make it a felony to threaten, harm, or defraud someone through online ...
As 2012 draws to a close, we reflect back on all that we have learned this last year. In the modern workplace, both employers and employees learned their fair share of technological dos and don'ts (re-read a few old Weeks in Review, and you'll see what I mean). The most recent lesson? Even "legal" employment actions can cause PR problems. Just ask the Iowa dentist who fired his assistant for being too attractive. The Iowa Supreme Court ruled that the termination was justified, but individuals from around the country have plastered the dentist's Yelp page with negative reviews, calling for ...
While employers should take steps to comply with all applicable legal obligations, it doesn't hurt to know those areas of compliance that are going to be given particular attention by enforcement agencies. Earlier this week, the EEOC announced its Strategic Enforcement Plan (SEP) for Fiscal Years 2013 2016. The SEP gives employers a peek at the measures the EEOC believes are needed to achieve its goal of deterring discriminatory practices in the workplace.
The SEP identifies the following six enforcement priorities:
- Eliminating Barriers in Recruitment and Hiring. The Commission ...
Do you have a lot of travel plans for this holiday season? Whether it is for work or play, new developments on the technology front may make your trip more enjoyable -- and productive too, if you'd like. The FAA is in the process of updating its policies on in-flight gadget use. With encouragement from the FCC and many frequent fliers, it is possible the FAA will expand when and what devices may be used during air travel.
If your trip involves leaving the country, you're likely to appreciate the more permissive policies, especially now that three of the United States' largest airlines will be ...
This week, there were a number of interesting developments in the world of employment labor law. A NLRB judge ruled that a union's Facebook page is not an extension of the picket line. The case involved striking workers' threatening comments on the union's Facebook page. The NLRB Acting General Counsel initiated the complaint against the union, arguing that the union, which did nothing to disavow the comments, should be held responsible for them, just like it would be if they were made out on the picket line. The NLRB judge disagreed and dismissed the complaint.
The other two ...
Usually, our Week in Review posts are full of examples of what can go wrong when employees use social media. This week, we can report a different kind of story. A group of women are harnessing the power of Twitter to promote positive change in the gaming industry. Using the hashtag #1ReasonWhy, these women are speaking out against what they describe as the pervasive culture of sexism in the gaming industry. The question of "why are there so few lady game creators?" has been answered by hundreds of industry professionals, including game developers, journalists, and others ...
Happy Thanksgiving! I hope all of you out there are enjoying good food and even better company. But, in case you need a welcome distraction from intense family bonding (or Black Friday strategizing), here's what is new in the world of technology and the workplace:
In an EEOC sexual harassment suit against HoneyBaked Ham, Co., a district court judge has ruled that the plaintiffs must turn over their cellphones and social media passwords to a court-appointed forensic expert. This expert is charged with going through text messages and social media content to determine what is relevant ...
Three states held votes earlier this month about legalization of the recreational use of marijuana. In two of the three, Washington and Colorado, the measures were approved. Oregon voters defeated the initiative in their state.
It seems General Petraeus isn't the only one whose digital footprint has betrayed him. A whole host of other individuals' online antics have landed them in hot water this week. Waffle House Chairman, Joe Rogers, Jr. is also facing a sex scandal. His former housekeeper has come forward with sex tapes which she alleges are proof that she was sexually harassed. Rogers denies the harassment and says that he is being blackmailed. A district court has ordered that the tapes be impounded -- for now.
In Kentucky, a couple of Walmart employees were fired based on an internet video of them throwing ...
Does an employee who violates an employer's computer use policy also violate the Computer Fraud and Abuse Act? Depends on who you ask. The Fourth Circuit recently held that an employee cannot be held liable under the CFAA for such conduct, even if the employee was improperly using computer access to steal company data. There are a number of circuits that disagree, however. Now, WEC Carolina Energy Solutions, the employer in the Fourth Circuit case, is asking the U.S. Supreme Court to weigh in on the issue. Stayed tuned to see if the Court agrees to get involved.
Other news stories this week ...
Language | I further agree that the at-will employment relationship cannot be amended, modified or altered in any way. | No representative of the Company has authority to enter into any agreement contrary to the ... |
Do you feel like all you ever do is work? Odds are, your personal devices are contributing to that feeling. A recent study by a British tech retailer found that smart devices are adding, on average, an extra two hours of work a day. So while that constant connection may give some peace of mind, it's also likely to bring with it the inability to ever be "off-duty."
Given the large role technology plays in our lives, it is not surprising that governments around the country have been working to figure out how to appropriately balance its risks and benefits. On Friday, the New Jersey Senate passed a ...
Employment with [the Company] is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in ...
Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (EEOC) has recently issued a guidance describing how the ...
Do you remember a while back when I wrote about a group of lifeguards that got fired for posting a spoof of the "Gangnam Style" video on YouTube? The city claimed that they violated the aquatic center's standards of conduct and improperly used city property, but the lifeguards countered that they did it while off the clock. Well, after some heated controversy, the mayor of the city has now recommended that they be reinstated. Three of the five council members agreed, and the city manager is now reviewing the file. Although things may end up working out for these young workers, the situation ...
Is it just me, or has Wisconsin been in the news a lot lately? From politics to sports, the Dairy State has caught the interest of the nation. This week was no different. When a Wisconsin news anchor used air time to address an email that criticized her weight and accused her of being a bad role model, the clip went viral. National news outlets picked up on the story, the anchor appeared on major-network morning shows, and people around the country weighed in on the appropriateness of the email and the problem of cyberbullying in general. Despite the controversy, the email author is standing by ...
On the other side of the country, states are ...
Sick of hearing about the gloom and doom associated with technology? Me too. That is why this Week in Review will be decidedly more positive, focusing on recent studies about the ways technology can enhance the workplace.
First up: telecommuting. Nearly 4,000 employees -- or 66.3% -- of the US Patent Office do it. With numbers like that, there must be some serious benefits to allowing employees to work remotely. Examples reported in this article include less sick and administrative leave taken, more hours put in (on average, 66.3 more hours per year for telecommuting Patent Office ...
With a tough economy, efficiency and productivity are often paramount for keeping a business afloat. While technology has certainly aided that cause, it has also provided workers with many time-consuming distractions. The productivity-stealing culprits this week: fantasy football, flirty emails, and co-worker impersonation. Check out the links below to learn more about the cost and benefits of allowing fantasy football teams in the workplace and the potentially unexpected effects of using emoticons in office emails (hint: you may find yourself a new admirer).
Another ...
Oh, the joys of technology. It can keep you connected when you're feeling social or provide hours of solo entertainment when you're not. And with new apps coming out every day, it is easy to get lost in a sea of technologically-induced euphoria. But don't let your guard down too quickly, because events this week remind us that where there is technology, there likely is someone -- or something -- watching.
A St. Paul police officer and a Yahoo News reporter learned that lesson the hard way. The officer, who was caught on a bystander's cellphone kicking an arrested suspect, is facing an ...
Past Weeks in Review have recounted many tales of Facebook-induced terminations. Fired for Facebook comments? Check. Fired for Facebook photos? Check. Fired for Facebook Likes? Check and check below. But fired for "friending" someone on Facebook? That is precisely what happened to a Georgia county deputy who wanted to be "Facebook friends" with an inmate. The two struck up sexually-charged conversations while she was being held in the county jail, and it appears the deputy wanted to keep contact after she was released on bond. Turns out neither the Sheriff's office nor the inmate's ...
Reason number 999 why employers don't want their employees texting at work: it may lead to a very large fire. That is what happened when a New Hampshire civilian worker got an upsetting text from his ex-girlfriend while at work. He wanted to leave early, so he decided to set the dock of a nuclear-powered Navy submarine on fire. No one was injured, and no damage was done to the submarine -- this time. But, because he admitted to setting an earlier $400-million-submarine fire, he is now facing two counts of arson and the possibility of life in prison. Looks like he may be getting more time off from ...
What do you get when you combine leaked photos, disgruntled employees, and a judge who is alleged to be watching porn? The answer: one heck of a Week in Review and a tale of multiple firings.
The leaked photo, which captured an employee of a Burger King restaurant standing in the restaurant's lettuce bins, appeared on the internet with the caption: "This is the lettuce you eat at Burger King." The employees involved were quickly fired once the franchisee that owned the restaurant was identified and contacted.
Two disgruntled Texas EMTs were also fired because they were involved in a ...
This week, it's all about Facebook again. Except for the news about the Yahoo hack, you'll be hard pressed to find a technological tale that doesn't involve the social media giant. So here it is: the good, the bad, and the ugly of Facebook, all in one convenient location.
The good: the site continues to create useful apps. There is an anti-bullying tool tailored to help teens report harassing behavior, a price alert app that notifies you when items you Like go on sale, and a plan to launch a job posting board. With apps like these, who says time on Facebook is unproductive?
The bad: a yoga ...
As America turns another year older this week, the government, just like its citizens, struggle to keep up with technological change. While the Executive branch and its agencies are embracing the crime-fighting advantages technology has to offer, the other two branches are pushing back. Legislatures in Delaware and Pennsylvania are working to protect the privacy rights of their citizens by enacting new social media laws. In New York, a judge showed that social media sites are not above the law by ordering Twitter to turn over subpoenaed Tweets of an Occupy Wall Street protester. With ...
A new provision of the Minnesota unemployment statute became effective July 1. Enacted by the 2012 legislature, the new language could have an impact on Minnesota employers and employees, but just what that effect might be is not -- to be charitable -- entirely clear.
It is not unusual for an employer to enter into an agreement with the departing employee under which the employee releases potential claims against the employer. To make such an agreement enforceable in a court of law, the employer must provide the departing employee something of value that, without the agreement, the ...
- The Society of Human Resource Management provides a brief summary of the decision on its Web site.
- Kaiser Permanente (the largest medical provider network in the country) has a helpful summary (aimed at consumers) at After The Ruling: A Consumers Guide.
- Other sites are providing relevant analysis such as the Minneapolis/St ...
Yesterday I wrote a post reminding readers about the EEOC litigation focus on inflexible leave policies, which raises the question: what should employers be doing to avoid liability in this area?
According to a recent statement by an attorney for the EEOC, [O]ne of the hottest areas of EEOC litigation right now involves the agency's efforts to root out inflexible leave policies. Although this statement is hardly news to anyone who closely follows EEOC enforcement efforts, it is a good reminder to employers that inflexible leave policies are an invitation to costly litigation. The type of inflexible leave policies the EEOC has challenged include no-fault attendance policies, policies that provide a maximum limit to the length of leave that may be available, and policies that ...
This Father's Day, dads might have more to worry about than how to enthusiastically thank their children for yet another tie. News stories this week highlight the increasing vulnerability of today's youth in a technology-filled world. From cyberbullying to predator apps to camera phones in the locker room, parents around the country are wondering how to keep their children safe. Luckily, they're not alone. The law--and tech companies--are stepping in. The New York Legislature is working on a bill to fight cyberbullying, a Minnesota prosecutor is making an example of teens who ...
While the powers of technology often spell trouble for employers and employees, they sure do make for interesting Weeks in Review. And this week is no different. Drag-queen Facebook photos, surreptitious surveillance, and anonymous emails all led to employee terminations this week. Perhaps the most noteworthy is the Oklahoma publisher who fired 25 employees over an anonymous, company-wide email that spoke of alleged outsourcing and mass layoffs. Not knowing the exact source of the email, the owner fired those he thought might be involved. To make matters more ...
A company in southeast Minnesota had approximately 30 Somali workers walk off the job on Monday morning to protest the companys new dress code policy. The policy, which prohibits women from ...
As technology continues to change, so too do employers' efforts to keep up. With new laws preventing employers from using passwords to access employees' Facebook pages, employers are finding other ways to monitor employees' online activities. A new Gartner report predicts that by 2015, 60% of businesses will be using Internet-monitoring technologies to monitor employees' social media use. However, employers must be careful in their quest to control online employee expression. This week, the NLRB issued a social media report cautioning all employers (even those ...
This week, technology brings trouble for employees and students, but benefits for the government and its citizens. In Massachusetts, a firefighter's emails were used against him in a sexual harassment investigation. Nearby, a Rutgers student was sentenced to 30 days in jail for using a webcam to spy on his roommate, and a Boston University student's plea for the Supreme Court to review his $675,000 fine for illegally downloading music was rejected. The government, on the other hand, is using technology to solve--rather than create--problems. Federal agencies are using apps to ...
Facebook dominated headlines once again this week, leaving little room for employment-related matters. The cyber world was abuzz in anticipation of this morning's launch of Facebook's IPO. The final IPO was set yesterday at $38 per share, but trading opened this morning at $42 a share. While many investors believe this is their golden ticket, others aren't so sure. With a pending privacy lawsuit and an AP poll showing that half of Americans think Facebook is a passing fad, it remains to be seen what kind of a deal Facebook investors really got today.
Technology and the ...
Tired of hearing about privacy? Perhaps you should avoid the news for a little while longer, then, because this week the war over online privacy heated up when Congress decided to join the fight. On Wednesday, the Password Protection Act of 2012 was introduced in the US Senate. It seeks to prohibit employers from coercing prospective and current employees to provide access to any secured information stored online or from retaliating against employees' refusals to do so. An identical bill is being debated in the House. A California bill with the same aims unanimously passed the Assembly ...
Privacy is right on the tip of everyone's tongue again this week. Delaware proposed its own Facebook privacy law for employers and employees that goes even further than Maryland's recent legislation and the law currently before Congress. The FCC released its full report on concerns with Google's gathering of data for their Street View feature on Google maps. A court in the Eastern District of Virginia ruled that a Facebook "like" is not protected under the First Amendment. Finally, the New York Times described how users can cover up their searching habits on the web.
Technology and the ...
What would a Week in Review be without some Facebook controversy? No need to ponder that possibility too long, for this week brings us a whole variety of ways in which Facebook is getting people into trouble. In the working world, a Marine lost his job and benefits because he used Facebook as a forum to criticize his Commander in Chief. In Indiana, three eighth-grade girls got expelled for posting on Facebook which classmates they would like to kill. In Georgia, two more middle schoolers are being sued for defamation as a result of their Facebook bullying. So remember, whether you are a ...
- Time of hire is redefined as no later than the first day of work for pay.
- Clear instructions to employers about how to ...
Even non-union employers need to be careful about their labor law obligations. Most readers have either given or heard this advice multiple times, but labor law risks are still sometimes overlooked. As an example, in one of the strangest employment-related news stories of the week, a Florida law firm reportedly fired 14 employees because they wore orange to work on a Friday. According to the news report, the law firm called the employees into a conference room and an executive accused them of engaging in a protest. An employee explained that they were not engaged in a protest, but ...
Well, the stakes for companies using unpaid interns have just gotten higher. Last Wednesday, an intern filed a wage and hour claim against Charlie Rose and ...
Technology and the Workplace
Off-Duty Blogging Creates Employer Harassment Liability (LawfficeSpace)
Steakhouse Waiter Fired for Showing the World What a Great Tipper ...
Technology and the Workplace
FDA Staffers Sue Agency over Surveillance of Personal E-mail (WashingtonPost)
Companies Opening ...
By the end of last week, 62,322 employees had pledged on Telework's website that they ...
Keeping an Eye on ...
In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor. The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses ...
This week technology once again helped and hurt the workplace. Companies are using cloud computing to save thousands of dollars, but employees still waste countless hours on email and the web. Meanwhile, new technology is making headlines this week, from Google goggles to an app that locates your iPhone for you. Plus, rumors are circulating about Microsoft Office on the iPad. Even if it's not true, a new app will give you access to a Windows 7 desktop from your iPad.
Technology and the Workplace
Should You Send That Email? (FastCo)
Your Facebook Profile Can Predict Your Job ...
I was researching cupcake places for an upcoming trip to New Mexico (I have a thing for cupcakes) when I came across the following advertisement for an unpaid internship on a cupcake shops website:
We're looking for interns! While these positions are unpaid, there is potential to lead to paid employment with [XYZ Bakery]. An internship with us is a great opportunity to learn all aspects of working in a scratch bakery, you'll have the opportunity to learn about cake batters, fillings, buttercream, fondant, gum paste, cake decorating and tiered cake construction.
No, I wasn't thinking of ...
Love is in the air this week as Valentine's Day approaches, and technology is in the news as it continues to impact and influence the development of the law. A Senate committee approved a bill this week that would allow television access to Supreme Court proceedings. A Texas court upheld the use of a defendant's MySpace page as evidence in his murder conviction. The country of Brazil filed suit against Twitter to try to block accounts that warn drivers of speed traps and roadblocks. And just as the law has collided with technology, Cupid's arrow has struck mobile devices everywhere ...
Minnesota courts have held that employers can protect themselves from contractual liability by including ...
If you're a non-union employer, you may be caught off guard by the administrative burden, not ...
Technology and the Law
Can a Court Make You Give Up Your Password? (ABC News)
New Fight Breaks Out ...
The final rule, issued jointly by the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety ...
The end of the year is, of course, a time for reflections, predictions, and resolutions for the new year. As Ive reflected on the 2011 Modern Workplace blog posts, the primary take-away from most posts is the importance of having a carefully drafted, lawful technology policy. In addition, the web is currently filled with technology predictions for 2012 that suggest the lightning fast pace of technological developments impacting the workplace will continue in 2012. Some of the 2012 predictions include touch computing potentially replacing desktops and laptops, more effective ...
Although it is frustrating to a prospective employer to be given only basic information, theres a reason it happens that way ...
Immigration is among the thornier and most complicated of all political issues, and also one of the most consequential to employers. A representative example: The current debate surrounding the federal worker eligibility status database, E-Verify.
Hewlett Packard fired its CEO and hired Meg Whitman, formerly of EBay. The Wall Street Journal asks whether HP's board has historic qualities.
Research in Motion, maker of the Blackberry ...
Okay - technology has done some wonderful things for all of us, including giving us the ability to store lots and lots of information. But, do you really want to do that?
Many employers are looking at ways to be more efficient by using technology to gather and store information about employees and applicants. Employers store everything from names to social security numbers to discipline data on electronic systems.
You may say, well that's just being efficient. I'm all for efficiency, but employers need to be aware that they have to balance their need for information with the employees ...
One notable practice that has led to Apple's success is the way in which it releases new products. Many technology companies begin trumpeting new products long before their release, even before they have created usable prototypes of the products. Tech enthusiasts have learned ...
The headline news this week is the report from The National Labor Relations Board summarizing recent social media opinions and offering additional guidance. Analysis from commentators and bloggers is only beginning to appear online, and we will be sure to include the most relevant and incisive articles in future postings. Our impressions are posted just below.
In the broader world of technology, HP's decision to stop producing Web OS products and sell their TouchPad tablet at the fire sale price of $99 prompted comments from legions of tech bloggers. The most concise ...
The issues most commonly raised . . . allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
Fewer employers are choosing the brand of smartphones that their employees use for work. According to recent surveys, an increasing number of companies offer reimbursement based on a "Bring Your Own Device" (BYOD) policy. Not surprisingly, this has undermined sales at Research in Motion (RIM), the largest provider of enterprise smartphones selected by employers. RIM, maker of Blackberry smartphones, has seen its prospects dim as more employees choose iPhones and Android-based smartphones and ask their company to support work use.
Though warning signs have been noted ...
Why do I start with a definition of the word Luddite? Quite simply, I'm probably at least in part a Luddite. I use technology every day; yet, I am reluctant to embrace much of the new technology. That may sound strange coming from a person who is writing on a blog about technology, but alas, it is true. Interestingly, every time I have been forced to use a new technology I have eventually embraced ...
Last week, Apple announced that it would begin offering volume purchasing for iOS apps. A week later, the App Store Volume Purchase Program is now open for enrollment. The Volume Purchase Program (VPP) allows businesses to make bulk purchases of apps, although Apple currently does not offer discounts for buying in bulk (insert joke about how expensive Apple products are here). However, the VPP allows businesses to purchase, customize, and distribute iOS apps throughout the enterprise.
So what does this development mean for employers? On the one hand, the VPP gives employers more ...
The June 2011
Over the last year, Regional Directors of the National Labor Relations Board have initiated several high-profile complaints against employers for policies and conduct related to social media. (See Megan Anderson's article about this trend here.) In these complaints, the NLRB has alleged that employers violated Section 7 of the National Labor Relations Act by maintaining overly broad social media policies or by disciplining employees for protected concerted activity (or both). However, many of the cases have settled, and none have advanced to trial, leaving a trail of ...
As a fan of the series, I have to admit that I was tempted to attend the midnight showing of the series finale. However, I know myself well enough to know that I would not be able to function at work well the following day, so I ...
Photo by Joseph Holmes (via Bits) |
Besides providing an ...
Earlier this week, I wrote about the speed of change in the world of technology. The next day, Google announced its latest entry into the social media world: the Google+ project. The Google+ project aims to challenge Facebook with features such as "Circles" for sharing of information with smaller groups, "Huddle" for group messaging, and "Hangouts" for video chatting. Although these features exist in other tools and networks, the combination in one platform could ultimately make Google+ a worthy rival to Facebook.
So what does this development mean for employers? For the time being ...
This Week in Review illustrates the Wild West that is the world of technology. Several stories from this week discuss events no one could have imagined ten years ago, including arrests of the members of the LulzSec hacking group, a looming FTC antitrust probe of Google for its dominance of the internet search market, and, of course, another take on the Rep. Anthony Weiner scandal.
In the midst of these developments, a story about the recent anniversary of the Listserv caught my attention. Listserv, the first automatic email delivery software, just celebrated its 25th year. In many ways ...
Data security breaches have been in and out of the headlines recently, and the Citigroup breach has once again brought the topic to the forefront. This week, Citi announced that more customers than originally announced had information stolen by hackers. All told, Citi reports that approximately 360,000 customer accounts were compromised. Even more troubling, Citigroup does not even know how the computer breach occurred, only that it affected hundreds of thousands of its credit card customers by revealing names, account numbers, and contact information.
Although Citigroup may ...
So what does this development mean for employers? In the short term, more information. Users who have not opted out of the technology may find themselves identified and tagged by ...
The recent attention given to Apples announcement of its iCloud internet-based online storage service is yet another indicator of the growing popularity of cloud computing, or using online data storage for files that can be accessed and managed anywhere using an internet connection. Instead of saving your files and data to your own device, you save them in a cloud, or web-based file cabinet. Google has offered this service to consumers since 2005 with its Google docs service. Now Apple is joining in, offering a free service that will basically allow users to mirror their iTunes ...
Although this work week was shortened by the Memorial Day holiday, there were plenty of stories in the world of technology, law, and the workplace. Maybe it's because I just (finally) saw The Social Network, but the news about San Francisco start-up Hipster's unique search for employees stood out to me. Hipster, looking for engineers, has taken to the web with a hilarious (though somewhat concerning) pitch: they are offering $10,000, a year's supply of Pabst Blue Ribbon beer, and an assortment of hilarious "hipster" accessories, such as a fixed gear bicycle, skinny jeans, and even ...
The New York Times ran an article this week that discusses the U.S. Army's increased use of social media to reach out to recruits. In short, the U.S. Army has launched a mobile application and is increasing efforts to reach out to new recruits via social media, including a Facebook page and a mobile blogging web page. Although I wrote about this development in a previous post, this week's article stood out to me in light of the upcoming Memorial Day holiday.
While change in recruiting tactics is nothing new for the U.S. Army, this story provides an interesting reminder to employers ...
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworkers allegation that employees did not do enough to help the organizations clients. The initial post ...
This Week in Review highlights the divide between on-duty and off-duty conduct of employees. Several articles from the last week involve stories about employee use of work computers to check Facebook and personal email, look at pornography, and access confidential medical information. This weeks round-up also features articles addressing the uncertainty faced by employers who attempt to regulate the off-duty conduct of employees. Although a recent NLRB Advice Memorandum upheld discipline of an employee for controversial statements on Twitter, another article asks whether ...
The U.S. Department of Labor has an app for that. On Monday, the DOL announced the launch of its DOL - Timesheet App, for iPhones (click here to download the app on iTunes). The application provides employees with an easy way to keep track of their working time. It also allows employees to add notes about time entries and easily export the entries. There's even a glossary with links to the DOL website, meant to educate employees about their rights under the Fair Labor Standards Act.
Here's what the DOL says about the use of the DOL - Timesheet App:
This new technology is significant because ...
In a consumer products case that will likely have a significant impact on employers and employees who enter into arbitration agreements, the U.S. Supreme Court ruled last Wednesday, April 27, 2011, that the Federal Arbitration Act preempts states from prohibiting enforcement of arbitration agreements that bar arbitration of class action disputes (AT&T Mobility LLC v. Concepcion, Docket No. 09-893, April 27, 2011). In a divided decision, the Court reversed a Ninth Circuit Court of Appeals decision that a class action arbitration waiver in AT&Ts wireless service agreement was ...
A line supervisor reports to HR that an employee has been lying about illness as the reason for frequent absences and shares that he ...
Privacy and secrecy in the workplace. It's kind of a touchy topic, isn't it? On the one hand, both employers and employees expect that information that they consider to be private will remain private. But on the other hand, both employers and employees often wonder about the secrets that the other is keeping from them.
We all knew schoolyard bullies, and, if we were lucky, they left us alone. The less fortunate, however, sometimes suffered devastating and long-term effects from bullying. Society has increased its focus on school bullying over the years. New challenges have also arisen, however, as bullying has moved into cyberspace with widespread impact. We continue to strive, however, to provide children with safe, healthy environments in which they can flourish and meet their full potential.
The news this week is another reminder that, although technology may appear to change everything, the same basic laws apply. If you screen applicants via Facebook, the same background check and discrimination laws will apply. If an employee engages in protected activity on social media, then protected activity laws still apply. And if an employee sues you, you can seek discovery of social media evidence on the same basis of as other evidence. These stories, and more, are discussed below.
The Epsilon story highlights a growing concern for employers about the security of confidential ...
On Monday, the United States Supreme Court agreed to hear yet another significant employment law case in its 2010-2011 term. The case, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, addresses the controversial ministerial exception to discrimination laws.
[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches ...
Given the material covered by this expanded summary, I wont add my own spin on the news in the world of technology and labor and employment law. However, watch for an article later this week on hiring for technology jobs, one of the hot topics discussed below. This is an area where there seems to be a perfect storm of an expanding industry and increasing government interest.
Without further ado, your week in review!
Technology in the Workplace
- Silicon ...
In an era of increasing worksite enforcement, many employers are turning to technology to assist in their compliance with immigration laws. For example, in recent years, new technology has emerged that allows employers to electronically store their Forms I-9. An electronic I-9 retention system may allow quicker completion, fewer mistakes, easier retrieval and a more accurate way to flag documents.
In July 2010, the Department of Homeland Security (DHS) finalized a regulation intended to provide more flexibility for employers to electronically sign and store I-9 forms. Until ...
We increasingly live in an electronic world where entertainment news articles about movie and TV stars are featured adjacent to articles about important technology, political, legal, and world events. No star is in the limelight these days like Charlie Sheen, and his recent antics have the mainstream media telling us that Sheen can teach us a thing or two about how to conduct ourselves in the workplace in this increasingly electronic age.
This week, Charlie Sheen was fired from his hit TV show, and CNN.com posted an article stating that Sheens conduct demonstrates the perils of ...
You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...
In my last post, I cautioned employers about using information that it learns about its employees through social networking sites. A few more thoughts on that. With employees posting running accounts of their daily activities on social networking sites, its quite tempting for employers to want to take a peek at what employees are saying about how they are spending their work day or what theyre doing on a day when they are supposedly missing work because of an illness or injury. Its even more tempting for employers to want access to this information when the employee in question has been a ...
This week, the technology world was abuzz with the announcement (and, of course, pre-announcement rumors) of the iPad 2. Apples newest contribution to the tablet market promises to provide further steam to the mobile computing movement.
One can hardly turn on the news without seeing coverage of the stand-off in Madison, Wisconsin between Governor Walker and union protesters over the Governors proposal to require government workers to contribute more to their health care and pension costs and to largely eliminate their collective bargaining rights. Many protesters who called in sick to attend the protest rallies were allegedly able to obtain sick notes from doctors who were providing sick notes at the protest rallies without any medical examination. This raises an interesting questionwhat is an employer to do when ...
Employment Practices Liability Insurance (EPLI) has been around for about 20 years now, and for some employers it has been a good investment. For others, it has been a disappointment, and for still others it remains a mystery. My own view is that every employer should consider adding EPLI to its insurance coverage, but should do so with a clear understanding of EPLI's limitations and cost.
So, what should employers expect and what should they watch out for when they shop for EPLI? That's the focus of today's post.
Employers should first understand what, if any, coverage they have for ...
The Gray Plant Mooty attorneys behind The Modern Workplace are devoted to exploring current issues in employment and labor law. We are particularly interested in The Next Big Thing, our shorthand for the many ways that technology is revolutionizing both the world we live in and the workplace. Each week, we will provide a summary of interesting news and blogs involving technology and law, especially the law of the workplace. This week marks the first of our TNBT: Week in Review features on The Modern Workplace.
This story comes on the heels of the news last week that a settlement was reached in the nationally publicized Facebook firing case. In that case, the NLRB filed a complaint against an ambulance service company that fired an employee for venting about her supervisor ...
Today we celebrate Saint Valentines Day, the annual commemoration of the martyrdom of Saint Valentine at the hands of the Roman Emperor Claudius II. Of course, we now celebrate this holiday by giving our loved ones heart-shaped candy and greeting cards! Although this may seem a strange cause for celebrating love, there is a romantic legend behind this otherwise morbid holiday. According to legend, the Christian priest Valentine was executed because he was performing marriage ceremonies for young men and women in violation of Roman law. Although this legend is now widely ...