According to our most recent survey, the absolute No. 1 workplace legal issue at the moment is how to prevent and manage litigation.
That’s not surprising. EEOC claims are at an all-time high. Class actions continue to rise. Employers now win less than 50 percent of the time in court.
We’re here to help. Based on input from the world’s leading employment law experts with a combined approximately 8,493,527,624 hours of employment counseling and litigation experience, here are our official:
Top 11 Litigation Tips in the History of the Universe Read more…
By Scott Mahoney
Some employers have decided that it is beneficial to try to avoid public lawsuits and arbitrate disputes they may have with their employees.
Such employers typically require employees to agree to arbitration at the time of employment by including such language in their employment applications or other documents that are signed by employees.
Employers may lose their right to arbitrate future disputes if they are not familiar with the provisions of a new Nevada law which provides that any arbitration agreement entered into or renewed on or after October 1, 2013 will be void and unenforceable unless the employee has specifically authorized and agreed to arbitration. Arbitration agreements in existence before October 1 are not subject to these requirements (unless they are renewed after that date). Read more…
By Eric B. Meyer
The Americans with Disabilities Act (ADA) limits when an employer can require an employee to take a medical examination.
Specifically, the ADA forbids employers from requiring medical exams (and cannot otherwise inquire into the nature or severity of a disability) unless the exam or inquiry is shown to be “job-related and consistent with business necessity.”
The U.S. Equal Employment Opportunity Commission (EEOC) advises (here) that an exam is permissible where the employer “has a reasonable belief based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Read more…
By Eric B. Meyer
Barbara Joy McElmurry worked for the Arizona Department of Agriculture.
In a Complaint she filed in federal court, she alleged that her supervisor forced her into a field work position in which she would not be able to drive vehicles because she was too short (4’10″). So, McElmurry asserted a claim for discrimination on the basis of disability, namely, her short stature.
So, could height (or lack thereof) be a disability? Read more…
By John E. Thompson
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.
The Fox Searchlight litigation
We reported in March 2012 that Fox Searchlight Pictures had been sued under the federal Fair Labor Standards Act and New York law by unpaid interns who were claiming to be due wages and other sums. The court has now ruled this week, in Glatt v. Fox Searchlight, that at least two of these individuals were indeed “employees” for purposes of the FLSA and state law. Read more…
By Ed Foulke
In a recent memorandum from the national office to its Regional Administrators, OSHA set forth new issues that Compliance Officers should examine when they inspect work sites where temporary employees are working.
The information to be documented includes determining whether the employees are exposed to conditions in violation of OSHA rules or other safety and health hazards and whether the employees received safety and health training “in a language and vocabulary they understand” as well as the supervising structure under which the temporary employees are reporting (i.e. who is supervising the temporary employees at the work sites). Read more…
By John E. Thompson
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.
But this is by no means the only one. Among others that continue to crop up all-too-often are: Read more…
By Jessica Cook
The U.S. Department of Homeland Security’s Immigration Customs and Enforcement (ICE) continues to issue Form I-9 Notices of Inspection to businesses across the nation.
In fiscal year 2012, ICE served 3,004 Notices of Inspection to businesses, totaling over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors or human resources employees.
The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws. Once the Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the company’s I-9 forms to be reviewed. Read more…
Discrimination has been with us for a long, long time, based on one characteristic or another that allows one group to identify another as less worthy, less intelligent, less skilled and on and on regardless of the time and place.
Whether it’s based on race, religion, ethnicity, gender or one of a hundred other variables, we’ve always found ways to stereotype our fellow humans.
For centuries, seeing “the other” as in some way undeserving was an acceptable attitude. It’s only recently that we’ve taken the trouble to look at discrimination as a problem, not a solution. Read more…
By Eric B. Meyer
Last week, the Fifth U.S. Circuit Court of Appeals in New Orleans ruled that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964.
In EEOC v. Houston Funding II, Ltd., Dominica Venters, who was recovering from a C-Section, alleged that she requested that her supervisor ask the boss if it would be possible for her to use a breast pump at work. The supervisor stated that when he posed this question to the boss, the boss “responded with a strong ‘NO. Maybe she needs to stay home longer.’ ”
Ms. Venters alleged that she was later told that her spot had been filled. Houston Funding alleged that Ms. Venters had abandoned her job. So, Ms. Venters alleged sex discrimination, and the U.S. Equal Employment Opportunity Commission took up the case on her behalf. Read more…