Practice Areas & Industries: Fisher & Phillips LLP

 




Workplace Safety and Catastrophe Management Return to Practice Areas & Industries

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Practice/Industry Group Overview

Attorneys in this practice utilize all aspects of Fisher & Phillips' labor and employment expertise to provide practical guidance to employers to develop and maintain effective workplace safety and health management programs.

Our attorneys assist employers in responding to inspections, defending litigation, and managing workplace catastrophes. These attorneys draw upon extensive experience in representing employers before numerous entities, including OSHA and MSHA, state agencies, and related organizations such as the Chemical Safety Board (CSB), Alcohol, Tobacco, & Firearms (ATF), state fire marshals, and others. Fisher & Phillips attorneys approach matters from a strategic standpoint and consider issues under the National Labor Relations Act, Fair Labor Standards Act, the Americans With Disabilities Act, and other relevant legal schemes.

Additionally, our attorneys assist employers to establish and implement substance abuse testing and prevention programs, as well as policies and procedures addressing violence in the workplace. The attorneys work with employers involved with workplace violence events to provide trauma response, counseling, and threat assessment, and we seek restraining orders and injunctions where appropriate against violent or threatening persons.

Our attorneys work closely with and manage outside firms and professionals, creating a unique multi-disciplinary approach to employee safety and health in the workplace. The practice services include:

Prevention, Preparedness and Enforcement

Prevention

Our attorneys assist employers with the overall development and legal review of safety and health management programs, with a special focus on self-audits and inspections, training, record-keeping, integration of safety programs with other employment policies and procedures, and efforts to minimize related civil liability and repeat citations. The attorneys consider issues associated with unionized settings and work with outside safety professionals and experts, often utilizing self-audits and inspections by such professionals to provide legal guidance that is covered by the attorney-client privilege. Attorneys utilize industry-specific experience to learn and meet a client's business needs.

Preparedness

Whether responding to a simple informal OSHA complaint, dealing with a full-blown MSHA, Federal or State-plan OSHA inspection, or a whistleblower investigation, our attorneys assist employers in determining areas of vulnerability, determining manager roles, and developing the process needed for response.

Enforcement

When MSHA, OSHA or other safety-related citations are issued, our attorneys help employers evaluate their position and minimize exposure to penalties and fines. We have broad experience in handling cases involving repeat or willful citations, corporate-wide investigations, whistleblower actions, construction and multi-employer settings, OSHA "Significant Cases" (cases with over $100,000 in fines), “Egregious Enforcement Program” (EEP) cases, and catastrophic and high visibility cases such as explosions, crane collapses, and employee fatality cases. Whether negotiating a settlement at an OSHA informal conference, or defending an employer in litigation before the Occupational Safety & Review Commission, our attorneys use their knowledge and experience to vigorously defend employers. We also coordinate with other counsel to provide OSHA and labor and employment advice in the context of criminal proceedings, construction disputes, and the civil litigation flowing from workplace catastrophes.

As in all areas of our labor and employment practice, we have developed cost effective strategies to manage large cases, as well as to provide guidance for smaller citations, often working with safety consultants and experts.

Abatement and correction issues arise after the issuance of safety citations, regardless of whether the citations are contested. Our attorneys provide assistance with ongoing OSHA abatement commitments, as well as providing assistance to employer efforts to improve safety, eliminate hazards, or comply with multi-year abatement or corporate obligations.

Catastrophe Management

Fisher & Phillips attorneys understand the confusion and the resulting quick response demanded by workplace catastrophes. Managing a catastrophe involves not only management of sophisticated legal issues, but also media relations, dealing with the families of the killed or injured employees, preparing for possible civil or criminal proceedings, and working with insurers, regulators, experts, and other involved parties.

Whistleblower Defense

Our attorneys assist employers in responding to claims under the 17 whistleblower laws administered by OSHA, as well as related state whistleblower laws.

Rulemaking

Fisher & Phillips represents employers and industry associations in preparing for the effects of new legislation or regulatory standards, as well as assisting with comments and involvement in rulemaking proceedings.


 
 
Articles Authored by Lawyers at this office:

Is Your Company On Senator Harkins’ Naughty List?
Howard A. Mavity, December 18, 2013
Hopefully you do not need further motivation to maintain an effective workplace safety culture; however, Senator Labor Chair Tom Harkins’ December 11, 2013 Report may serve as additional motivation. In the 4” thick Report, “Acting Responsibly? Federal Contractors Frequently Put...

High Court Limits Timing Of Certain ERISA Claims
, December 17, 2013
The U.S. Supreme Court unanimously upheld a contractual clause that limited a participant’s ability to file a lawsuit pursuant to a long-term disability (LTD) policy. The contractual limitation was three years from the date proof of loss was required. The decision confirms that there is no...

2014 Flu Update, and Oh, Wash Your $%#! Hands!
Howard A. Mavity, December 16, 2013
Almost 4.1 million employees missed work due to illness last January, which was the most since 2008. Even worse, the four-month peak season lasted through March, so the numbers continued to add up. Some years, absences during that four-month period ran at 3.8 million a month, for a whopping total...

New Year's Resolutions: Five Areas Of Focus For 2014
Edward F. Harold, December 09, 2013
The Affordable Care Act has dominated the headlines of employment newsletters (justifiably) for the last six months. It will continue to be an area of focus for all employers. But don’t lose sight of the fact that all the other employment laws remain on the books and continue to pose...

Senate "Misclassification" Bill Bears Watching
John E. Thompson, December 09, 2013
Yet another "misclassification" bill introduced in the U.S. Senate would impose new prohibitions, requirements, and penalties relating to categorizing a worker as being either an employee or a non-employee. The "Payroll Fraud Prevention Act of 2013" (S. 1687) would among other...

State of the Unions: New Tactics Target Unorganized Workers
Matthew R. Korn, December 09, 2013
If you've been following the news, you probably realize that it has been a busy year for organized labor. The percentage of unionized workers in the private sector has fallen to historic lows, leaving unions with fewer dues-paying members, and motivating them to adopt new tactics to stem the...

Want To Be A Leader At Work? Look To Nelson Mandela
Howard A. Mavity, December 09, 2013
After 30 years of seeing the worst of the workplace, I have few heroes left. Today, I lost my JFK or MLK. I’ll remember where I was sitting when I learned that the lion who was Nelson Mandela, had roared his last. I choose to believe that’s how he went out. As a lion of a man.

Deep-Fried Discrimination Claim: Lisa T. Jackson v. Paula Deen, et al.
Craig A. Cowart, December 06, 2013
The whole country watched as celebrity chef Paula Deen was roasted over the lawsuit filed by a former general manager of a Deen-affiliated restaurant. Now that the media storm is starting to fade, what lessons can employers and human resources professionals learn from what happened? Keep reading...

Was It a Good Year or Bad Year? The 2013 Employment Law Year in Review
Richard R. Meneghello, December 06, 2013
It's pretty common each December to take stock and look back at the year that is ending, whether it’s recounting the happy times and counting one’s blessings, or reliving the disappointments and ruing over the regrets (and sometimes a bit of both). The world of employment law is no...

Wash Your *!&# Hands! Employers and the Flu
Howard A. Mavity, December 06, 2013
Almost 4.1 million employees missed work due to illness last January, which was the most since 2008. Even worse, the four-month peak season lasted through March, so the numbers continued to add up. Some years, absences during that four-month period ran at 3.8 million a month, for a whopping total...

When Is A Union Not A Union? When It's a "Worker Center.”
Steven M. Bernstein, December 06, 2013
In recent weeks, the fast-food industry has fallen prey to coordinated demonstrations by a number of loosely affiliated groups, rallying around wages, benefits and other conditions. The strategy invoked by these so-called "worker centers" (or "alt-unions") is not altogether new,...

Globalizing in Hong Kong
Alice Shelor Wang, December 05, 2013
With dynamic soaring towers, elaborate bright lights, and heart warming traditional customs, Hong Kong’s enigmatic economic and business climate serves as a financial capital for all industries, companies, and firms. Indeed, Hong Kong is a pivotal financial center of Greater Asia! As a former...

More Confusion Likely Over California's "Paid Family Leave"
, December 05, 2013
Earlier this year Gov. Brown signed into law an expansion of the state's "paid family leave" benefit. While the new law does not become effective until July 1, 2014, already media outlets have reported that employees will have expanded rights to paid time off from work next year. This is...

Comments by Celia Joseph on November 7, 2013
Alice Shelor Wang, November 29, 2013
With dynamic soaring towers, elaborate bright lights, and heart warming traditional customs, Hong Kong’s enigmatic economic and business climate serves as a financial capital for all industries, companies, and firms. Indeed, Hong Kong is a pivotal financial center of Greater Asia! As a...

Practice Thanksgiving At Work
Howard A. Mavity, November 29, 2013
Although Americans have celebrated some sort of Thanksgiving since 1661, Abraham Lincoln established Thanksgiving as a national holiday by proclamation on November 28, 1861. The Thanksgiving holiday takes on more meaning when one considers that an American people so exhausted by war, nonetheless...

The Movie, Dallas Buyers Club Teaches a Lot About Work and Life
Howard A. Mavity, November 29, 2013
The Dallas Buyers Club, just opened in limited cities, it’s the largely true story of a thoroughly unlikeable hard ass Texas oil worker at the beginning of the 80’s AIDS crisis, who learns that he has full blown AIDS (from wild heterosexual behavior). The movie is amazing. It’s...

Third Degree Murder Charges For Philadelphia Building Collapse
Howard A. Mavity, November 29, 2013
EHS Today just reported that the Philadelphia District Attorney is taking the unusual step of charging two contractors for crimes ranging from multiple murder and manslaughter charges to risking a catastrophe as a result of the fatal collapse of the Philadelphia building last June, that killed 6...

When Is More Leave Not a Reasonable Accommodation?
Howard A. Mavity, November 29, 2013
Cases under the ADA are fact specific. Often it is difficult to find clear cut standards for determining if an employee is qualified to perform the essential functions and if an accommodation is reasonable. In Attiogbe-Tay v. Southeast Rolling Hills LLC, a court concluded that a nurse who returned...

FAQ: What Employers Need To Know About Portland Paid Sick Leave
, November 26, 2013
Beginning January 1, 2014, Portland, Oregon will require most employers to offer paid sick leave to their employees. The following list of Frequently Asked Questions will help employers get up to speed with the ordinance and accompanying administrative regulations.

Hotels, Motels Still Drawing USDOL Attention (Updated 11 21 13)
John E. Thompson, November 25, 2013
One of the U.S. Labor Department's continuing federal Fair Labor Standards Act enforcement initiatives targets hotels and motels. Officials are following-through on their 2010 warning that they see the hospitality industry as presenting a "high risk" for non-compliance.

"Right to Know" Initiative Apparently Expanded
John E. Thompson, November 19, 2013
The U.S. Labor Department has announced another proposal to conduct a survey relating to "worker classification issues" under the federal Fair Labor Standards Act.

H-3 Visa - Training in the U.S. to Further a Career at Home
Kim Kiel Thompson, November 15, 2013
Training in the U.S. may be required to prepare a foreign national for a new position or a new career in his or her home country. The H-3 Trainee visa category may be the perfect option for the foreign national to gain the skills and tools needed to advance in a career or launch a new venture.

OSHA Proposes Publishing Worker Injury Data
, November 15, 2013
OSHA has announced a proposed rule which will require establishments with 20 or more employees in certain industries with high injury and illness rates, to electronically submit their summary of work-related injuries and illnesses to OSHA every year. The change may affect between 450,000 and...

'Tis The Season: Employers And The Flu
Ruth N. Mackey, November 07, 2013
This flu season may be one of the worst in years, but the experts at the Centers for Disease Control and Prevention (CDC) cannot monitor its severity and scope because of the federal government shutdown. Unofficial flu trackers in the U.S. report elevated instances of flu-like illness in some...

Are You Paying Your Detailers Correctly?
Matthew R. Simpson, November 07, 2013
Over the last year, there has been an increase in dealership payroll audits by the U.S. Labor Department (DOL). Some DOL investigators have implied that these audits are part of a broad internal "initiative" to check wage-hour compliance at dealerships. As the audits have played out, it...

Compliance With Child And Forced-Labor Laws
Cheryl L. Behymer,Celia M. Joseph, November 07, 2013
Many countries are uniting for one simple cause: stopping child and forced labor. The U.S. Labor Department (DOL) is committed to stopping child labor and has adopted this as a key platform. On June 13, the World Day Against Child Labor, Carol Pier, Acting Deputy Undersecretary of the Labor...

Extraordinary People
Jessica T. Cook, November 07, 2013
The O-1A visa category is available to foreign nationals with extraordinary ability in the arts, sciences, education, business, or athletics who want to work in the United States. These individuals are part of a small percentage of people who have risen to the very top in their respective fields of...

Facebook: The New Water Cooler - Not The New Vegas
Karen L. Luchka, November 07, 2013
As of June 2013, Facebook, the reigning social-media giant, had 1.15 billion monthly active users who spent an average of 8.3 hours a month on Facebook. During roughly the same period of time, Facebook users "liked" a Facebook posting 4.5 billion times a day and uploaded an average of 350...

How To Manage An OSHA Inspection
Howard A. Mavity, November 07, 2013
Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps. Readers already know to take photos whenever the Compliance Officer takes shots and to take notes, but do you know "why" to take those photos...

Manitoba’s New Privacy Law Has Implications For Cross-Border Employers
Danielle S. Urban, November 07, 2013
Last month, the Canadian Province of Manitoba enacted privacy legislation governing the collection, use and dissemination of personal information, including employee personal information. With the legislation, Manitoba joins the other Canadian Provinces of Quebec, Alberta, and British Columbia in...

Plan Now To Minimize Liability For Holiday-Party Misconduct
D. Albert Brannen, November 07, 2013
36% of employers report employee misconduct at holiday parties. The misconduct ranges from excessive drinking to sexual advances, off-color jokes, vulgar language, arguments, or even fistfights. This article summarizes risks to employers and lists precautions you can take to minimize your...

What's An "Individualized Analysis" - And Why Should I Care?
A. Kevin Troutman, November 07, 2013
The Americans with Disabilities Act (ADA) poses ongoing compliance challenges and attracts significant attention from plaintiffs' lawyers and the Equal Employment Opportunity Commission (EEOC). The resulting litigation continues to illustrate that inflexible policies and practices are a recipe for...

"Comp Time" Might Be Moving Up On The Agenda
Ted Boehm, November 06, 2013
We reported in April and May about the fast-tracked "Working Families Flexibility Act of 2013" passed in the U.S. House of Representatives. This measure proposes to amend the federal Fair Labor Standards Act to permit private-sector employers to offer compensatory time off in lieu of...

FLSA Investigations Result In Criminal Convictions
John E. Thompson, November 06, 2013
A U.S. Labor Department press release serves as a reminder that violations of the federal Fair Labor Standards Act can result in more than just back-wage payments and other civil remedies.

Healthcare Reform Update
Tabatha L. George, November 06, 2013
Despite glitches and long wait times, the Health Insurance Marketplace created by the Patient Protection and Affordable Care Act (ACA) came online October 1, 2013, and along with it arrived a new notice obligation for employers. Employers were required to distribute a notice of coverage options to...

Implementing a Trade Secrets Protection Program
Michael R. Greco, November 06, 2013
In the business world, protection of trade secrets can make the difference between success and failure, or profit and loss. This post seeks to show you how to protect your company’s trade secrets so that in the event one of your employees steals a trade secret, you will be in the best...

It's Past Time To Dispel The "Half-Time" Fog
Ted Boehm,John E. Thompson, November 06, 2013
A decision by the Fifth Circuit U.S. Court of Appeals (with jurisdiction over Louisiana, Mississippi, and Texas) illustrates and exacerbates the utter and unwarranted morass into which the calculation of overtime pay has descended in so-called "failed exemption" cases under the federal...

The World Post-Windsor: Rethinking Benefit And Leave Policies For Same-Sex Spouses
Tabatha L. George, November 06, 2013
Following a highly-publicized U.S. Supreme Court decision and subsequent guidance from both the Labor Department (DOL) and the Internal Revenue Service (IRS), employers need to rethink how they treat same-sex spouses under their employee benefits plans and leave policies.

IRS Publishes New Cafeteria Plan Rule
, November 05, 2013
The IRS handed healthcare flexible spending account participants an early Christmas present on Halloween when it modified cafeteria plan "use-it-or-lose-it" rules so that $500 can be carried over from one year to the next in FSA accounts. Under Notice 2013-71, these accounts may now be...

How The New "SharedWork Ohio" Law Will Affect Employers
, November 04, 2013
This summer, Ohio Gov. John Kasich signed into law "SharedWork Ohio," an initiative designed to help workers and employers alike by preventing layoffs. The "SharedWork Ohio" program gives Ohio employers new flexibility to keep their workforce intact when experiencing a downturn...

San Francisco's New Flextime Ordinance
, November 04, 2013
Under the San Francisco Family Friendly Workplace Ordinance signed on October, 30, 2013 by Mayor Edward Lee, parents and caretakers have been afforded the right to request modified work schedules, such as a change in start times, part-time and part-year schedules, telecommuting and schedule...

Excuse Me Judge, Could I Be Heard On That?
Michael R. Greco, October 28, 2013
A few months ago, I filed a motion for a TRO on behalf of a client. I thought I had a pretty rock-solid case. My client had discovered that in the weeks and months leading up to the resignation of a former employee, the employee had created a detailed spreadsheet containing proprietary customer...

Internships Might Be Vanishing
John E. Thompson, October 28, 2013
We have observed for some time now that the spate of wage-hour lawsuits might be expected drastically to curtail the availability of internships of both the unpaid and paid varieties.

"Naughty Or Nice?" App Bogs Down
John E. Thompson, October 21, 2013
We reported in July that the U.S. Labor Department had launched a "Fair Labor Data Challenge" asking application developers to create "an innovative tool that lets an informed consumer find out if a business is obeying the law when it comes to paying workers properly." As we...

Basics of Employment Law in Italy
Amanda K. Caldwell, October 17, 2013
Italy, with a population of over 60 million, is one of the top ten largest economies in the world. There are many benefits to doing business in Italy, including its favorable geographic location and flexible and diverse economy. However, any employer currently doing business in Italy or who is...

New Immigration Reform Bill Introduced in United States Legislature
Jessica T. Cook, October 15, 2013
On October 2, 2013, members of the Democratic Political Party in the U.S. House of Representatives introduced H.R. 15, “The Border Security, Economic Opportunity, and Immigration Modernization Act”. H.R. 15 is a comprehensive immigration reform bill mirrored after the U.S....

Are You Paying More Than You Must?
John E. Thompson, October 14, 2013
Employers sometimes pay workers more than the federal Fair Labor Standards Act requires. Of course, some do so as a matter of choice.

New California Law Requires Overtime Pay for Personal Attendants
, October 11, 2013
On September 26, 2013, Governor Jerry Brown signed into law a bill which entitles personal attendants in California to overtime pay. Previously, Industrial Welfare Commission Wage Order 15 provided a complete overtime exemption for all such workers. Beginning January 1, 2014, AB 241 mandates that...

Employees: Don't Play Cute With Non-Solicitation Obligations!!
Michael R. Greco, October 08, 2013
Many employers are applauding a recent decision issued by the U.S. Court of Appeals for the First Circuit, which rejected an employee’s argument that as a matter of law he could not have solicited clients who called him first. The Court explained that employers have a right to enforce valid...

Big Little Man On Campus: Protecting Minors At Colleges And Universities
Candice C. Pinares-Baez, October 04, 2013
Hazing, underage drinking, and campus noise violations. These are all issues that most colleges and universities are very familiar with. Policies, procedures, and response protocols have been developed, tried, and tested with respect to those issues which accompany the young-adult population. But...

California Increases Minimum Wage Next Year
, October 04, 2013
Governor Jerry Brown recently signed into law a bill that will increase California’s minimum wage in two phases. Beginning July 1, 2014, the minimum wage for California employees will rise from the current $8 per hour to $9 per hour. On January 1, 2016, the minimum wage will increase to $10...

California's Regular Rate: Getting It Right Can Save Money
John K. Skousen, October 04, 2013
With the increasing focus on wage-and-hour litigation, the issue of an employee’s “regular rate” arises in most every case involving alleged unpaid overtime. It also factors into an employer’s payroll, each and every pay period. Here’s a brief roadmap through this...

Do I Have To Treat My Employees Like Kids? Uh... Sometimes
Howard A. Mavity, October 04, 2013
The question of “do I have to actually make my employees wear PPE” made it all the way to the full Occupational Safety and Health Review Commission (OSHRC) last year.

Strike Two - The EEOC's Failed Attempts To Limit Background Checks
Matthew R. Korn, October 04, 2013
On August 9, 2013, the EEOC suffered its second defeat of the year in litigation involving employer use of criminal and credit background checks for employment screening. A federal district court in Maryland held that the EEOC’s expert analysis was statistically flawed, unreliable, and...

Time For Your School's Annual Checkup
Suzanne K. Bogdan, October 04, 2013
Now that school has started, it’s time to ensure that your house is in order for the school year. Each year we outline those items in which we see trends developing or find issues with which schools consistently have challenges. It is far better to address these issues preventively rather...

Variety Is The Spice Of The Court: A Preview of the 2013-14 Supreme Court Term
Christin M. Choi,Christina M. Michael, October 04, 2013
The upcoming Supreme Court term promises a series of significant decisions for employers. No less than seven cases (and potentially two more pending petitions) will have at least some impact on all employers this year. The outcomes of these cases could affect employers’ negotiations with...

Windsor & DOMA: Issues for Cross-Border Employers
Steven A. Witt, October 04, 2013
On June 26, 2013, the U.S. Supreme Court ruled in U.S. v. Windsor that Section 3 of the Defense of Marriage Act (“DOMA”), which defined “marriage” as strictly between opposite-sex couples and “spouse” as referring only to a person of the opposite sex who is a...

"Extra" Pay And Overtime Headaches
John E. Thompson, October 02, 2013
A recent $4 million settlement between the U.S. Labor Department and a Texas healthcare employer highlights a recurring overtime issue under the federal Fair Labor Standards Act.

Turkish Wage and Hour Law Shares Many Complexities With Its American Counterpart
Roland De Monte, October 02, 2013
Wage and hour law in Turkey is deceptively complex despite its seemingly simple premise, just as its American counterpart. Indeed, many of the same issues American employers wrangle with relative to laws and regulations concerning employee pay ( e.g., minimum wage, overtime, what constitutes time...

When Coaches Can't Compete -- Non-Competes in Sports
Gregory D. Hanscom, October 01, 2013
In the lucrative world of big time college football, universities continually try to gain an edge over the competition by, among other things, luring top notch coaches with generous multi-million dollar contracts. One such instance of this occurred in late 2012, when the University of Arkansas...

Netherland Antilles Employee Allowed to Continue Gender Bias Suit against Employer's U. S. Sister Company
Celia M. Joseph, September 26, 2013
In a case that will certainly be of interest to multi-national companies with subsidiaries and affiliates in numerous countries, a New York Federal Court recently allowed a U.S. company to be sued by an employee of its sister affiliate in St. Maarten, Netherlands Antilles. On August 7, 2013, in...

CFPB Bulletin Addresses "Payroll Card Accounts"
John E. Thompson, September 23, 2013
A statement of some federal-law limitations and requirements relating to the increasingly popular practice of compensating employees via the use of "pay cards" came from an atypical direction on September 12.

Companionship-Exemption Regulation To Be Released
Ted Boehm, September 23, 2013
Months after its April 2013 target date, the U.S. Labor Department announced this afternoon that it is issuing a Final Rule re-stating the requirements for and limitations upon the "companionship" exemption in the federal Fair Labor Standards Act's Section 13(a)(15). USDOL reportedly will...

Major Changes To Home Companionship Exemption Announced
, September 23, 2013
On September 17, the U.S. Labor Department (DOL) announced that it will be issuing a final rule that will bring significant changes to the “companionship” exemption in the federal Fair Labor Standards Act’s Section 13(a)(15). The final rule is scheduled to be published in the...

New Jersey Employers Face New Leave Requirement
, September 23, 2013
Beginning October 1, 2013, many New Jersey public and private employers will be required to grant job-protected leave to victims of domestic violence or sexually-violent offenses, and also to family members of such victims. That is the effective date of the New Jersey Security and Financial...

All Employers Face October 1st Health Reform Deadline
, September 16, 2013
With the Health Insurance Marketplace created by the Patient Protection and Affordable Care Act (PPACA) set to open its figurative doors for enrollment on October 1, 2013, employers face a new obligation. Nearly all employers must distribute a notice of coverage options to their employees no later...

Court Finds Indiana Right-To-Work Law Unconstitutional
, September 16, 2013
In a stunning decision, a state court judge has ruled that Indiana’s hard-won right-to-work law is unconstitutional. The reasoning is strained and rests on the rather peculiar notion that “just compensation” for a union means forcing all employees to pay dues, whether they...

EEOC Loses (Again) On Criminal-Background Checks
Edward F. Harold, September 05, 2013
Last year, we wrote about the EEOC’s then-new guidance on the use of criminal-background checks in hiring decisions. [“Using Conviction Records As A Screening Tool,” Retail Industry Update, June 2012]. In December 2012, the Commission issued a strategic enforcement plan that...

Employers Go "Two For Two" - Three Times Over: A Review Of The 2012-13 Supreme Court Term
Richard R. Meneghello, September 05, 2013
Looking back at the recently-completed 2012-2013 Supreme Court term, employers should have reason to feel good about how things turned out. In fact, of the six major decisions that impact employers and can be categorized in the “win” or “lose” column, employers won all six...

Put It On My Card? Not So Fast!
Michelle I. Anderson, September 05, 2013
In the age of technology and convenience, some businesses, particularly those with multi-state operations, are turning away from issuing paychecks to employees or paying them by direct deposit. Instead, some are opting to pay employees using payroll debit cards. Just like the debit card most people...

Supreme Court Tightens Standard In Retaliation Cases
Joseph W. Gagnon, September 05, 2013
As the U.S. Supreme Court ended its most recent term with a number of cases that will have broad societal implications, one employment law case decided by the Court seems to have taken somewhat of a back seat, despite the significant effect it will have on retaliation claims arising out of...

Court Rejects "Al Capone Defense" To FLSA Violations
Gregory D. Ballew, September 04, 2013
On July 29, a federal appeals court addressed the question of whether the Fair Labor Standards Act’s minimum wage and overtime protections apply to undocumented aliens working illegally for an employer. Drawing on an analogy to the unlawful practices of a lawful immigrant, Al Capone, the U.S....

Group Advocates Pay For White House Interns
John E. Thompson, September 03, 2013
The unpaid-interns ruckus continues to unfold, this time in a way that entangles President Obama.

Bangladesh Labor Reform
Amanda K. Caldwell, August 29, 2013
Since the tragic collapse of a factory building in Dhaka, Bangladesh in April of 2013, which resulted in the death of over 1,000 workers in the clothing industry, the Bangladeshi government has adopted a number of amendments to the Bangladesh Labor Act of 2006 (“Labor Act”) in an...

Fluctuating-Workweek Ruling Might Be Reviewed
John E. Thompson, August 28, 2013
Last month's "Fuzzy Thinking" post mentioned Sisson v. RadioShack Corp., in which a lower federal court in Ohio deferred to the U.S. Labor Department's 2011 allegation that paying performance bonuses is purportedly "incompatible" with a fluctuating-workweek compensation plan...

O-1A Visa for Individuals with Extraordinary Ability
Jessica T. Cook, August 26, 2013
The O-1A visa category is available to foreign nationals with extraordinary ability in the arts, sciences, education, business, or athletics who want to work in the United States. These individuals are a part of a small percentage of people who have risen to the very top in their respective fields...

Former Employee Successfully Disavows FLSA Settlement
Edward N. Boehm, August 20, 2013
The Eleventh Circuit U.S. Court of Appeals (with jurisdiction over Alabama, Florida, and Georgia) recently expanded the court's 1982 ruling in Lynn's Food Stores, Inc. v. U.S. limiting the settlement of claims under the federal Fair Labor Standards Act. Lynn's Foods said that such settlements...

Manager Taken Hostage in China
Annie Lau, August 14, 2013
As many have read in recent news, an American business executive was held captive by employees of his medical supply factory outside of Beijing. The workers were reportedly worried about wages, layoffs, and the factory closing. While not harmed (he was brought three hot meals a day and allowed...

Unauthorized Alien Workers Recover FLSA Wages
John E. Thompson, August 06, 2013
Two federal appellate courts have ruled this year that, as one of them put it, "aliens, authorized to work or not, may recover unpaid and underpaid wages under the [federal Fair Labor Standards Act]." This was the July 29 conclusion of the Eighth Circuit U.S. Court of Appeals (with...

"Black Swan" Ruling Forces Closer Look At Unpaid Interns
Jaklyn Wrigley, August 02, 2013
Unpaid summer internships are routine for some businesses, especially those in creative fields such advertising, design, music, publishing and film - all areas that have flourished locally in recent years.

"Nursing Mother" Break Requirement Spurs Investigations, Lawsuits
John E. Thompson, August 02, 2013
A little-known section of the Patient Protection and Affordable Care Act requires employers covered by the federal Fair Labor Standards Act (FLSA) to allow a worker to take unpaid break time to express breastmilk for her nursing child. The requirement extends for a year after the child is born.

Courts Don't Buy DOL's Position On Service Advisors
Matthew R. Simpson, August 02, 2013
We expect that our dealership clients are now familiar with the U.S. Labor Department’s continued attack on the exempt status of dealership service advisors.

Deadline To Update HIPAA Materials Is September 23, 2013
Callan G. Carter, August 02, 2013
On January 25, 2013, Health and Human Services (HHS), the federal agency in charge of implementing the Health Information Privacy and Accountability Act of 1996 (HIPAA) issued regulations modifying the HIPAA Privacy and Security enforcement rules. These regulations finalized the amendments to HIPAA...

Do I Have To Hire A Criminal With Bad Credit?
Tillman Y. Coffey, August 02, 2013
The answer to whether an employer may refuse to hire someone with a criminal record or bad credit is not as simple as you might think. Two recently-filed lawsuits by the EEOC alleging that employers’ criminal-conviction policies resulted in race discrimination are just the most recent...

Don't Let Shift Differentials Lead To Costly Litigation
Michelle I. Anderson, August 02, 2013
Shift differentials are common in the healthcare industry. But some employers may not realize that the differential must be calculated into the “regular rate” of pay, which is not exactly the same thing as the hourly rate.

Five Documents Sure To Appear In Your Lawsuit
Mauro Ramirez, August 02, 2013
Although simple and oftentimes overused, sports metaphors can provide insight into complicated topics. When it comes to employment litigation, cases often boil down to “blocking and tackling.” In other words, the fundamental (but unglamorous) activities often make a far greater...

Government Agencies Taking Dim View of Employers' "Bright-Line" Policies
A. Kevin Troutman, August 02, 2013
For years, human resources practitioners have been able to confidently rely on a simple principle when dealing with a variety of tough decisions. That principle is “consistency” in applying company policies, meaning that policies should be clear, objective and evenly-applied.

Make Your No-Harassment Policy Less Sexy
A. Kevin Troutman, August 02, 2013
In recent years, many high-profile workplace-harassment lawsuits have grabbed headlines, complete with lewd and salacious allegations. Sexual harassment is indeed a form of gender discrimination and courts have issued many important opinions in handling these cases. But for both practical and...

NLRB Taking Close Look At Photography Policies
Laurel K. Cornell, August 02, 2013
In February of 2009, a Wisconsin medical center fired several nurses after they electronically posted patient x-rays to their Facebook page, revealing the presence of a potentially embarrassing foreign object. As a result, the local sheriff’s office investigated the medical center and...

Protect Your Key Information - And Your Key Relationships
Michael P. Elkon, August 02, 2013
Decades ago, it was reasonable to imagine that one could work for the same company from the start of one’s career to the end. Think about the world portrayed in Mad Men. Don Draper has mostly worked with the same fictional co-workers - Roger Sterling, Pete Campbell, Joan Harris, Bert...

Same-Sex Spouse Is Entitled To Death Benefits Under ERISA-Qualified Plan
, August 02, 2013
Following on the heels of the Supreme Court’s decision in U.S. v. Windsor, a federal district court in Pennsylvania recently held that the same-sex spouse of a deceased employee is entitled to receive death benefits under the employer’s ERISA-qualified plan. Cozen O’Connor v....