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Employment Discrimination and HarassmentReturn to Practice Areas & Industries

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Practice/Industry Group Overview

Laws prohibiting discrimination and harassment continue to expand, and government agencies continue to increase their enforcement activities. Fisher & Phillips lawyers assist employers faced with claims of discrimination, harassment and retaliation brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and similar federal and state laws. Our attorneys defend lawsuits in federal and state courts around the country, including class actions and multi-plaintiff cases. Our attorneys also represent educational institutions involved in Title IX claims, defend businesses and property owners in ADA Title III litigation, and represent property owners and associations litigating fair housing claims. Our attorneys additionally work with employers that are responding to individual and systemic discrimination charges brought before the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs, as well as state civil rights agencies.

In addition, our attorneys work with employers of all types and sizes to help minimize the risk of litigation. We design workplace anti-discrimination and anti-harassment policies, provide management and supervisory training, and assist in coordinating internal investigations of harassment and discrimination claims. Our attorneys also assist government contractors in evaluating their status and obligations under affirmative action laws, in drafting affirmative action plans, and in responding to OFCCP compliance audits through all phases, including conciliation.


 
 
Articles Authored by Lawyers at this office:

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...

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.

'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...

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...

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.

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.

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
Edward N. 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.

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...

USDOL's "Naughty or Nice?" App
John E. Thompson, July 30, 2013
The U.S. Labor Department has signaled for some time now that it considers shame and ostracism to be enforcement tools. USDOL's Wage and Hour Division has taken another step in this direction by seeking entries in a contest to develop a smartphone application providing "consumers with...

Top Official Held Personally Liable Under FLSA
Edward N. Boehm, July 24, 2013
A recent decision by the Second Circuit U.S. Court of Appeals (Connecticut, New York, and Vermont) is a reminder that individual business owners and management members can face claims of personal liability for federal Fair Labor Standards Act violations. In Irizarry v. Catsimatidis, the court...

Don't Chase Your Tail in Pursuit of the "Perfect Non-Compete"
Michael R. Greco, July 23, 2013
I recently read an article in which some talented lawyers did a nice job summarizing a few recent conflicting cases in Massachusetts. In Interpros, Inc. v. Athy, a Massachusetts court held that a new restrictive covenant must be signed every time an employee has a significant change in...

New Ruling Broadens Scope Of Massachusetts Anti-Discrimination Statute
, July 23, 2013
The Massachusetts Supreme Judicial Court (SJC), the highest court in Massachusetts, ruled on Friday that the Commonwealth’s antidiscrimination statute, which bars employment discrimination on the basis of handicap, prohibits employers from discriminating against an employee based on the...

California State Supreme Court Denies Review Of Piece-Rate Case: Lower Court Ruling To Stand
, July 22, 2013
The California Supreme Court denied review of a California Court of Appeal case, which held that piece-rate-paid employees are entitled to separate hourly pay for “waiting” time. Gonzalez v. Downtown LA Motors.

Nuclear Stand Down: Senate Compromise Paves Way for Full Complement of Pro-Labor Controlled NLRB
, July 22, 2013
A bold threat by Senate Majority Leader Harry Reid (D-Nev.) to change Senate filibuster rules to reduce the number of votes necessary to approve Executive branch nominees - the so-called “nuclear option” - helped to ensure that the National Labor Relations Board will continue to advance...

Connecticut Governor Vetoes Non-Compete Bill
Risa B. Boerner, July 19, 2013
Last month, the Connecticut state legislature passed a bill that would have regulated the use of noncompete agreements. The bill would have applied in the context of a merger or acquisition of an employer, where, as a result of the merger or acquisition, an employee was presented with a noncompete...

A Costly Change: Violation Of a Non-Solicitation Clause Results In a Multi-Million Dollar Award
Gregory D. Hanscom, July 18, 2013
A recent ruling entered in Pennsylvania state court is a stark reminder to employers and employees about the dangers associated with violating post-employment restrictive covenants such as non-compete and non-solicitation provisions. The case, captioned as B.G. Balmer & Co. Inc. v. Frank...

Fuzzy Thinking About Fluctuating-Workweek
John E. Thompson, July 09, 2013
In 2011, the U.S. Labor Department did its best to discourage the use of fluctuating-workweek pay plans under the federal Fair Labor Standards Act. It undertook this in a grab-bag release collectively titled "Final Rule", which also dealt with numerous FLSA matters unrelated to...

Healthcare Reform and Seasonal Guest Workers
Steven A. Witt, July 08, 2013
any employers are eagerly watching the U.S. Congress as it debates comprehensive immigration reform legislation. However, employers of foreign workers need to be aware of another comprehensive reform already enacted—the Affordable Care Act (“ACA”).

Appellate Court Attacks Piece-Rate Compensation - Again
James C. Fessenden, July 05, 2013
The piece-rate compensation system, common among automotive technicians, agricultural workers, manufacturing employees, truck drivers, and others, has been a viable and rewarding form of compensation in California for over a century. But for the second time in three months a California appellate...

Can You Fire Someone For Being Too Sexy?
Richard R. Meneghello, July 05, 2013
Is it possible to fire an employee because you think they are too sexy?

Court Clarifies Impact Of Multi-Tasking On Exempt Status
John K. Skousen, July 05, 2013
The salaried exemptions remain an actively litigated area in employment litigation. In order to be exempt from overtime and related regulations governing timekeeping and meal and rest periods, it’s not enough that an employee be paid a salary; rather, a number of other important requirements...

Updated Psychiatric Manual May Pose New Challenges for Employers
James J. McDonald, July 05, 2013
Suppose a shy and awkward employee who just performed badly in a customer presentation brings a note from his doctor diagnosing “Social (Pragmatic) Communication Disorder” and asks not to have to meet with customers again as a reasonable accommodation.

But The Employees AGREED To It!
John E. Thompson, July 03, 2013
Our recent "Famous Last Words" post cautioned that having an employee enter into an agreement that is contrary to the federal Fair Labor Standards Act's requirements does not trump those requirements. Coincidentally, the U.S. Labor Department now reports that yet-another employer has...

Can A Fixed Sum EVER "Include" Overtime Pay?
John E. Thompson, July 03, 2013
Our Quick Quiz Answer discussing day-rate plans led one reader to observe that the federal Fair Labor Standards Act does not always bar employers from paying non-exempt employees a fixed sum that "builds in" some FLSA overtime compensation. While this is true, the permitted arrangement...

Employers With International Operations Must Take Care to Protect Employee Data
Danielle S. Urban, July 02, 2013
When is the last time your company reviewed its data protection policies? If your company employs any international employees, it may have obligations under foreign laws to have specific safeguards in place. Failure to observe a jurisdiction’s data protection laws can result in staff...

Supreme Court Rules DOMA Is Out, Same-Sex Marriages Are Legal
, June 28, 2013
As the 2012 term of the U. S. Supreme Court comes to a close, the Justices left the most politically and emotionally charged decisions for last. On June 26, 2013, the Court handed down its decision striking down the federal Defense of Marriage Act (DOMA) in United States v. Windsor. A companion...

Supreme Court Confirms The Definition Of "Supervisor" Under Title VII
, June 26, 2013
On June 24, 2013, the U.S. Supreme Court held that, for purposes of employer liability for harassment under Title VII, a supervisor is defined as someone who can undertake or effectively recommend tangible employment decisions affecting the victim, in other words, someone who can make a...

Supreme Court Limits Mixed-Motive
, June 26, 2013
On June 24, 2013, in a 5-4 decision, the U.S. Supreme Court clarified that an employee alleging unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 must prove that a retaliatory motive was the “but-for” cause of an adverse employment action. In other words,...

Supreme Court Upholds Class Action Waivers In Arbitration Agreements
, June 21, 2013
The U.S. Supreme Court held today that courts cannot invalidate arbitration agreements which waive class actions, unless there is an express congressional statement that class-action proceedings are so necessary to a federal claim as to preempt the Federal Arbitration Act (FAA). American Express...

Nevada Imposes Restrictions on the Use of Credit Reports in Employment Decisions
, June 20, 2013
Employers frequently use credit reports (sometimes referred to as “consumer reports”) as a tool in determining whether to hire, promote or retain an employee. The Fair Credit Reporting Act (FCRA), a federal law, allows an employer to deny employment based on the content of a consumer...

Nevada: Inquiring About Personal Social Media Will Be Illegal
, June 20, 2013
Unless it is necessary to comply with a state or federal law or regulation, effective October 1, 2013, it will be illegal for a Nevada employer to require, request, or even suggest that an employee or a prospective employee disclose the user name, password or other access information to his or her...

Still Willing To Have Unpaid Interns?
John E. Thompson, June 18, 2013
We have repeatedly cautioned that employers who are prepared to take on unpaid interns should enter into these arrangements with their eyes fully open. New developments emphasize this yet again.

Colorado Family Care Act To Go Into Effect
, June 13, 2013
On May 3, 2013, Colorado Gov. John Hickenlooper signed into law the new Family Care Act (FCA). The law attempts to broaden the qualifying reasons for employee leave under the federal Family and Medical Leave Act (FMLA).

Employment Reform Law In Venezuela
Amanda K. Caldwell, June 13, 2013
Venezuela’s new labor law referred to as the Organic Law of Labor and Workers (“LOTTT”), became effective May 7, 2013. LOTTT establishes several critical labor reforms relevant to wage and hour requirements, maternity leave and pension requirements. All employers who are doing...

FLSA Famous Last Words . . .
John E. Thompson, June 06, 2013
There has always been a great deal of mistaken conventional wisdom afoot where the federal Fair Labor Standards Act is concerned. We have blogged previously about the common misconception that one pay practice or another has just got to be lawful, because "everybody does it" that way.

Lessons Learned from Sports: Improve Your Team Every Year
Edward F. Harold, June 06, 2013
Seasonal hiring is critical to the hospitality industry’s ability to provide service in peak seasons. Whether it is the rush of the winter ski season or the crowded summer months at the beach, employers’ needs fluctuate dramatically with the influx of guests. With the competition for...

Practical Best Business Practices For Going Global in Chile
Alice Shelor Wang, June 06, 2013
Going global in Chile gives employers the opportunity to hire some of the leading professionals and creative talent in Latin American. The official population of Chile is just under 16,000,000, of which over 51% is female. Chilean economic policy is based on the free market principle, and Chile...

"Let's Hire An Unpaid Intern," Often A Bad Idea
John E. Thompson, June 05, 2013
We’ve warned clients for some time now that businesses and other organizations should think carefully if they are considering the possibility of permitting unpaid internships. What might be described as the internship “season” is fast-approaching, so the time to consider whether...

Becoming A Resume Lie Detector
James R. Holland, June 05, 2013
Society of Human Resource Management studies show that 53% of job applicants lie on their resumes. Other research has placed the number at between 30% and 50%, with one 2011 study saying that 80% of resumes are - at a minimum - “misleading.”

Handling Misconduct By (Someone Else's) Employees
Edward F. Harold, June 05, 2013
In “Legally Blonde,” Reese Witherspoon’s hairdresser catches the eye of her crush, the sexy delivery driver. In spite of starting with an awkward misfire with the hairdresser smacking the delivery driver in the nose, the plan ultimately works and the two are seen together as a...

Love Is In The Air...
Ria N. Chattergoon, June 05, 2013
Nora Roberts said “Love and magic have a great deal in common. They enrich the soul, delight the heart. And they both take practice.” Love and the workplace, however, well, that is a different ball game.

What The Bleep?
C. R. Wright, June 05, 2013
There was a time when cursing at work seemed to be the norm in many businesses. Whether in a shop, an office, a hospital or other work environment, swearing and cursing can still occur. One research study out of London published in a 2007 issue of the Leadership and Organization Development...

Why Would Employees Tease About Nooses In 2013?
Howard A. Mavity, June 05, 2013
It was surprising and disappointing to read about a punitive damages award against a North Carolina employer who allegedly tolerated employees referring to an African-American coworker as a “coon” and offering him a hangman’s noose. It’s 2013, not 1960.

Alabama Firearm Act Gives Right of Action against Employer
, May 29, 2013
Alabama has become the most recent state to adopt a “bring your gun to work law,” with Governor Robert Bentley signing a firearms-related bill into law on May 22, 2013. The law takes effect August 1, 2013. The law will impact Alabama employers and companies with operations in that state.

Europe’s Largest Ethnic Minority Group Likely To Turn To European Courts To Combat Discrimination In Coming Years
Roland De Monte, May 28, 2013
For more than 1,000 years, the Roma (still more commonly known in the English-speaking world as “Gypsies,” although this term is now outdated and considered to be derogatory) have lived on the fringes of the societies of the European nations in which they reside. This is true in spite...

OSHA Opens Worksites to Allow Union Representatives to Participate in Walk-around Inspections of Non-Union Companies
, May 28, 2013
In a new letter of interpretation publically released on April 5, 2013 (originally dated February 5, 2013), the Occupational Safety and Health Administration (OSHA) announced for the first time that during an OSHA inspection of non-union worksites, employees can be represented by anyone selected by...

Swiss Voters Approve “Against the Rip-Off” Referendum Restricting Corporate Compensation
Celia M. Joseph, May 20, 2013
On March 3, 2013, voters in Switzerland approved a referendum providing one of the world’s most onerous restrictions regarding executive compensation. The referendum entitled, “Eidgenössische Volksinitiative ‘gegen die Abzockerei’” or, in English, “Federal...

Court Strikes Down NLRB Poster Rule
, May 16, 2013
The National Labor Relations Board suffered another significant blow this week, when the U.S. Circuit Court of Appeals for the District of Columbia struck down the Board’s controversial notice-posting mandate on the basis that it infringed upon employer free speech rights, while otherwise...

$1 Billion Workers' Comp Refund For Ohio Employers
, May 10, 2013
On May 2, 2013 Gov. John Kasich proposed a workers’ compensation rebate for Ohio’s 210,000 public and private employers. The rebate could amount to as much as $1 billion. The announcement was made at a press conference at Homage, a small business in the Short North neighborhood of...

End of Companionship Exemption?
Edward N. Boehm, May 06, 2013
In April, the U.S. Labor Department (DOL) is scheduled to announce regulations that will almost certainly increase the cost of employing individuals as home care aides who are considered “companions” under the Fair Labor Standards Act (FLSA). Currently, employers are not required to pay...

"Comp Time" Proposal: Be Careful What You Wish For
Edward N. Boehm, May 03, 2013
The U.S. House of Representatives will consider amending the federal Fair Labor Standards Act to permit private-sector employers to offer compensatory time off in lieu of monetary overtime compensation. The fast-tracked "Working Families Flexibility Act of 2013" (H.R. 1406) was approved...

After The Violence Come The Lawsuits
Edward N. Boehm, May 03, 2013
A lawsuit filed against a business in Minneapolis, Minnesota demonstrates that the problems associated with workplace violence do not necessarily end once the violence stops. Recently, the family of one of six individuals slain at the interior signage company filed a wrongful death lawsuit against...

The NLRB's Quorum Quandary
Laurel K. Cornell,Erin O. Sweeney, May 03, 2013
The ongoing saga over composition of the National Labor Relations Board took several twists last month, and uncertainty continues to swirl around the agency’s authority to do business. As of today, the Board consists of Democrat Chairman Mark Pearce (whose term is set to expire in August),...

Facebook Foils FMLA Faker
Karen L. Luchka, May 02, 2013
The legitimate and beneficial purposes of the Family and Medical Leave Act (FMLA) are undeniable. The law provides employees who have a serious health condition, are caring for a family member with a serious health condition, or are undergoing certain major life events such as the birth or adoption...

Workplace Bullying: Will You Know It When You See It?
Michael P. Elkon, May 02, 2013
The media and political figures have paid increased attention to workplace bullying in recent months and years. A simple Google search can confirm this reality. Moreover, legislators in 21 states have introduced bills to address and combat workplace bullying, starting with California in 2003.