• Posts by Suzanne S. Newcomb
    Partner

    Employers in all industries are bombarded with ever-changing and increasingly cumbersome regulation, not only from the federal government and its agencies, but also a patchwork of state and local laws. Suzanne helps her clients ...

As we discussed in our previous blog post, in 2021 the EEOC issued a technical assistance guidance addressing employers’ obligations under Bostock v. Clayton County, the U.S. Supreme Court’s 2020 landmark decision holding that Title VII prohibits workplace discrimination on the basis of sexual orientation and gender identity. We blogged about the Bostock decision in June 2020.

The Seventh Circuit Court of Appeals ruled last week that a contractual choice of law provision was irrelevant to whether workers were employees or independent contractors and to whether pay deductions were lawful.

Retaliation remains a top enforcement priority of the federal government. Last week the U.S. Department of Labor (DOL) announced a new field assistance bulletin entitled “Protecting Workers from Retaliation” and pledged to “use every tool available” to “uphold the rights of workers to identify violations of the law without fear of termination or other threats to their reputation, safety or livelihood.” Making good on its pledge, this week the DOL ordered an Arizona manufacturer to pay nearly $600,000 and reinstate a former employee who claimed retaliation ...

No employer is immune from staffing storages in today’s climate, but December 2021 unemployment data released this week by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), confirms what Indiana employers have been feeling for a while: it is harder than ever to recruit and retain talent.

According to the report, Indiana had the lowest unemployment rate in the nation in December 2021 at just 1.3% (tied with Utah), significantly lower than the national rate of 3.7%. Indiana also took the top two spots on the national list of metropolitan areas for December 2021 ...

As discussed in our September 9, 2021 blog, the Biden administration has directed OSHA to implement an Emergency Temporary Standard that will require employers with 100 or more employees to ensure their employees are either fully vaccinated or tested weekly for COVID-19. While employers anxiously await OSHA’s Emergency Temporary Standard and guidance on who it applies to and what it entails, federal courts are upholding vaccine mandates that employers have chosen to voluntarily implement.

In August, New York City announced it was implementing a vaccine mandate requiring ...

President Biden announced recently that those suffering “Post-Acute Sequelae of Sars-Cov-2 Infection,” aka long haul COVID-19, may qualify for protection under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

Our understanding of the aftereffects of COVID-19 continue to evolve. The CDC currently lists the most common post-COVID symptoms on their website. These symptoms include:

  • Dyspnea or increased respiratory effort
  • Fatigue
  • Post-exertional malaise andor poor endurance “Brain fog,” or cognitive impairment
  • Cough
  • Chest ...

As we previously discussed, Illinois has moved beyond “ban-the-box” and now significantly restricts employers’ ability to consider criminal convictions when making employment decisions. (For more details see our employer’s guide and join our complimentary webcast on April 29, 2021.)

Illinois is not an outlier. Several states have enacted or are considering similar legislation. Below is a short summary of these state laws applicable to private employers. All of these statutes have exceptions. Note too, the fact that a state is not listed does not necessarily ...

On December 22 the Federal Department of Labor (DOL) published a Final Rule changing the FLSA regulations for tipped employees. The Final Rule takes effect 60 days after publication. A caveat before we dig into the Final Rule; the change affects only federal law. As with all things wage-and-hour-related, many states, and some local governments, enforce more stringent requirements. Some jurisdictions prohibit tip credits entirely. This post focuses on the federal standard only. Employers must adhere to the requirements applicable to their particular business in each ...

The Families First Coronavirus Relief Act or “FFCRA” requires employers with less than 500 employees to provide paid leave to employees unable to work (or telework) for various COVID-related reasons. Particularly relevant as many schools open either virtually or with combination of in person and virtual instruction is FFCRA’s mandate for paid leave to care for children not in school or daycare due to COVID-19.

On August 27, 2020 the DOL added FFCRA FAQs 98-100 clarifying that:

  • FFCRA is not triggered if the child’s school is open for in-person instruction but the family ...

As our readers know, the Families First Coronavirus Relief Act (FFCRA) requires employers with less than 500 employees to provide paid leave to employees who are unable to work (or telework) for a variety of COVID-related reasons (including caring for children not in school due to COVID) though December 31, 2020. On April 6, the U.S. Department of Labor (DOL) issued a final rule implementing the FFCRA. Shortly thereafter, the State of New York filed suit claiming the regulations unduly restrict employees’ right to paid leave. This week a federal judge in the Southern District of New ...

Back on March 18th as we were entering the COVID-19 health crisis, we addressed EEOC guidance on the impact of the ADA on COVID-19 preventative measures.  Fast forward to today, as our collective focus shifts to talk of “re-opening the economy,” the EEOC has updated its guidance.  Uncertainty abounds as to whether it will be business as usual or a new normal.  Undoubtedly though, employers will need to be mindful to avoid ADA pitfalls as restrictions are lifted, furloughed workers return and/or as new hires are brought onboard. 

The EEOC’s updated guidance addresses the ...

The question many employers have faced in recent weeks is whether or not COVID-19 could be covered by workers compensation. The answer is generally… “UNLIKELY — except those who are directly involved in dealing with the pandemic — i.e. healthcare workers.” Under workers compensation law 101, an injured or ill employee bears the burden of establishing a causal connection between the conditions under which the work is performed and the injury/illness at issue. This has been the case even for employees contracting infectious diseases such as Hepatitis-B or ...

On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). A component of the FFCRA is the Emergency Paid Sick Leave Act (EPSLA), which requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 corona virus starting April 1. 

Generally, EPSLA requires covered employers to provide all employees with two weeks (up to 80-hours) of paid sick leave at the regular rate of pay when the employee is unable to work because he/she is quarantined pursuant with ...

It has been a busy week for the National Labor Relations Board which issued three decisions in quick succession on December 16 and 17. Each of the three is a clear win for employers.

In the first of the three, the Board restored employers’ right to stop deducting and remitting union dues after the expiration of the collective bargaining agreement requiring it to do so. Valley Hospital Medical Center, 368 NLRB No. 139 (2019). The Board held that so-called “dues checkoff provisions” exist only by virtue of the parties’ contract and therefore cease when that contract expires ...

Long used to prevent former employees from gaining an unfair competitive advantage, covenants not to compete are increasingly under attack. California, North Dakota and Oklahoma essentially ban employee non-competes and recent legislation in Illinois, Maine, Maryland, Massachusetts, New Hampshire, Oregon, and Washington prevents their use with lower wage employees (the definition of which varies by state). Some laws go further, in Massachusetts, for example, a non-compete cannot be enforced against an employee terminated without cause and, in many cases, the employer ...

A federal court in Pennsylvania recently ruled that a former employee presented sufficient evidence to warrant a jury trial on a claim she was retaliated against after she resigned. The decision serves as a good reminder that anti-retaliation protections extend beyond the end of the employment relationship to protect former employees.

Cherie Leese complained of sexual harassment while employed by a state agency. She later filed a charge alleging she was issued discipline in retaliation for her report. The parties eventually settled. As part of that settlement, Leese resigned ...

On May, 1, 2019, Indiana Senate Bill 99 was signed into effect amending Indiana’s Wage Assignment Statute. The amendment makes the statute a bit more employer friendly by clarifying that, with proper authorization from the employee, an employer can deduct the cost of rental uniforms from an employee’s wages. Although the legislative intent behind the 2015 amendments to the Act may have been to allow deductions for rental uniforms, prior to the 2019 amendment, the statutory language only allowed employers to deduct wages for purchased uniform costs. In a 2018 case before the U.S ...

The CDC reports that half of all Americans will experience mental illness at some point in their lives. According to the National Alliance on Mental Illness, 46.6 million adults in the U.S., roughly 1 in 5, experience some form of mental illness in a given year, and for 11.2 million Americans each year, roughly 1 in 25, the condition is sufficiently severe and substantially limits major life activities. Yet, despite the wide prevalence of these conditions, our society continues to stigmatize mental illness. As a result, conditions often go untreated leading to reduced employee ...

As with so many ADA questions, “it depends.” However, a pair of cases pending before the 7th Circuit Federal Court of Appeals (covering Illinois, Indiana, and Wisconsin) could provide further guidance.

The 7th circuit has not definitively ruled on whether obesity alone is a “disability.” Federal appellate courts for the 2nd, 6th, and 8th circuits (covering NY, CT, and VT; KY, MI, OH, and TN; and AR, IA, MN, MO, ND, NE, and SD respectively) have all concluded obesity is not a disability unless it is linked to some other disabling condition. In the first of two pending ...

Reasonable accommodation issues often require an employer to balance the needs of the employee requesting accommodation with the needs of other employees who are impacted by the decision. These issues can be magnified when an employee relies on a service dog. Most employers are unfamiliar with the issue, and courts and enforcement agencies provide little guidance on service dogs in the employment context. As a result, when the issue arises, many employers scramble to answer the most basic questions: Are we required to allow a service dog in the workplace? What if another employee ...

In July the EEOC announced the terms of a consent decree settling claims of systemic disability discrimination against a global metal products manufacturer. Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.

Where did the employer go wrong? According to the announcement, the employer ...

In January we reported on a change in federal tax law aimed at discouraging confidentiality in sexual harassment and abuse settlements. Since then Tennessee, Washington, New York, and New York City have enacted sexual harassment prevention measures including discouraging confidential settlements.

In Tennessee and Washington it is now unlawful to condition employment on an agreement not to disclose workplace sexual harassment although confidential settlements are still permitted in both states. The Washington state law further clarifies that non-disclosure ...

The U.S. Supreme Court ruled this morning that employers can enforce class action waivers included in employment-related arbitration agreements. An arbitration agreement is a contract through which an employee and an employer agree in advance to resolve any disputes that may arise through binding arbitration rather than in court. The issue before the Supreme Court was whether an employer could enforce an arbitration agreement provision requiring each employee to arbitrate his or her disputes individually rather than collectively or as part of a class action. The Court ruled ...

Back in November we reported on a federal judge ordering several members of management to turn over messages from their personal email accounts and counseled employers to be proactive in managing employees’ use of personal email for company business. The guidance set forth there rings true for text messages and other forms of electronic communication (e.g. WhatsApp, Slack, Trello and myriad others) as well.

As we explained in our prior post “document production” encompasses not only “documents” in the traditional sense, but all relevant information “stored in ...

Last week, a federal judge presiding over a sex discrimination case ordered several members of management to search their personal email accounts and turn over all relevant information. The ruling serves as a reminder of the sheer breadth of discovery in litigation, especially in the context of “electronically stored information” or “ESI.”

As a general rule, parties to federal litigation “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense…” Federal Rule of Civil Procedure 26(b)(1). State courts apply ...

Technology allowing employers to use biometric data tools to track attendance and maintain worksite security abounds. Purveyors hype the advanced technology’s ability to accurately validate time entries, eliminate fraud, and better control access to the workplace or to sensitive areas within the workplace. If these systems are so readily available, it must be legal for employers to use them, right? As with seemingly everything involving HR and the workplace, it depends.

Last week, a group of Chicago-area employees filed a class action suit, alleging their employer’s use of ...

The proposed budget released by the White House in May includes a plan to provide new parents with up to six weeks of paid leave to bond with a new child. Obviously the plan is far from becoming law; implementing such a plan would require congressional approval and that process has yet to start. Still, the plan is interesting for its shear breadth and its mode of funding. The plan calls for funding through each state’s unemployment insurance programs. So far at least, there are very few details.

Though many employers choose to provide some amount of paid leave to new parents, only 3 states ...

On April 13, 2017 the National Labor Relations Board (NLRB) set aside a vote defeating a union organizing campaign and ordered a new election because the workforce could have perceived management’s statements as impermissible promises to provide benefits if they voted down the union (see full decision here).

During a unionizing campaign, management held a meeting in which it advised employees that another facility’s employees received a 12% pay raise the pay period after they rejected union representation. Management explained that the raises were the result of a ...

The organizers of January’s Women’s March on Washington and similar “sister” marches across the country are calling for women to “take the day off from paid and unpaid labor” on March 8, 2017.  Promoted as a “Day Without A Woman” and an “International Women’s Strike,” the protests are scheduled to coincide with International Woman’s Day.

While we do not anticipate the level of participation to be on the scale of the January marches, employers will likely experience higher than normal employee absences and should plan accordingly. As a general rule:

  • Have a ...

The U.S. Supreme Court announced Friday, January 13, 2017 that it will hear a trio of cases concerning the right of employers to include class action waivers in employment-related arbitration agreements. Arbitration agreements are contracts through which an employee and an employer agree to resolve potential future disputes through binding arbitration rather than through the courts. Class action waivers are provisions in arbitration agreements that prohibit employees from joining together to arbitrate multiple related claims in a class or collective action. If such a waiver ...

A Texas federal judge today, November 16, 2016, struck down the U.S. Department of Labor’s controversial “Persuader Rule” finding it unlawful. The decision made permanent, and gave nationwide effect to, the court’s earlier temporary injunction blocking enforcement of the Rule. As we reported back in March and again in June, the Persuader Rule would have essentially gutted the “Advice Exception” to the federal Labor Management Reporting and Disclosure Act by requiring employers and labor relations consultants, including attorneys, to submit detailed ...

Last week the EEOC filed suit against an Arizona car dealership for rescinding its offer to an applicant who tested positive for a substance banned by the company’s drug policy. The drug screen itself was legal. The ADA specifically allows employers to screen applicants and employees for illegal drug use. It was the employer’s policy of excluding anyone who tested positive for certain substances without first inquiring whether the substance was legally prescribed to treat a disability that prompted the EEOC to file suit. Notably, the EEOC filed suit on behalf of this particular ...

The Federal Court of Appeals for the First Circuit recently upheld a National Labor Relations Board decision finding a car dealership’s dress code ban on “pins, insignias, and message clothing” was, in and of itself, an unfair labor practice. The case is another in a long line of NLRB decisions striking down policies as unfair labor practices because, the board claims, employees might interpret them as infringing upon their right to unionize or engage in other concerted activity protected by Section 7 of the National Labor Relations Act.

The board concluded the ...

The EEOC has finalized 2 rules relevant to employer wellness programs. The Final Rules, which can be found here and here, amend existing regulations implementing the Americans With Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (“GINA”), respectively, and specifically address employer-sponsored wellness programs.

The ADA prohibits employers from making disability-related inquires or requiring medical examinations, except in limited circumstances. GINA prohibits employers from requesting, requiring or purchasing “genetic ...

Effective January 1, 2016 all 53 EEOC field offices across the country have implemented the Commission’s new “Digital Charge System,” an online portal through which employers will receive and transmit information to the EEOC. From now on, all major communications between the EEOC and employers, including the Commission’s service of newly filed EEOC charges, will be transmitted through the online portal. In most cases, the EEOC will no longer mail paper copies of EEOC charges and related documentation to employers. Instead, the EEOC will send an email to the employer ...

Recently the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) reversed a District Court decision which dismissed a Title VII gender discrimination claim brought by an auto mechanic who is transgender, Chavez v. Credit Nation Auto Sales, LLC (11th Cir. Jan. 14, 2016). In reinstating the plaintiff’s claim, the Eleventh Circuit reaffirmed its earlier pronouncement that discrimination based on gender nonconformity is unlawful sex discrimination.

The employer claimed to have terminated the plaintiff for sleeping on the job. Because plaintiff ...

On December 3, the Federal Court of Appeals for the Seventh Circuit (Illinois, Indiana and Wisconsin) affirmed dismissal of a failure to accommodate claim brought by an employee bumped from a job assignment that accommodated his disability after his employer opened that assignment to seniority-based bidding pursuant to the terms of the collective bargaining agreement (CBA).

After a series of injuries and several extended leaves of absence, the employee was released to return to work with permanent restrictions that prevented him from performing many of the physically demanding ...

Last week a Federal District Court ruled a disgruntled former employee could proceed with her interference and retaliation claims under the FMLA even though she never actually took any FMLA-qualifying leave. The case serves as a reminder of just how easily an employee triggers the statute’s broad protections.

The former employee submitted completed FMLA paperwork relating to a chronic condition and the employer approved her request to take intermittent leave, as needed, in the future. She never actually took leave under the statute and, in fact, she did not even ask for any ...

On September 4, a Federal Appeals Court upheld a National Labor Relations Board (NLRB) decision finding management comments to employees during the early stages of a union organizing campaign unlawful. Section 8(a)(1) of the National Labor Relations Act makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 rights include “the right to self-organization, to form, join, or assist labor organizations.” The NLRB and the Courts interpret this language broadly.

Back in 2011 rumors about a possible ...

In the past, dress codes were straightforward. Depending on the nature of the business, they required a “neat, clean uniform” or perhaps “professional attire” and banned tube tops and flip flops. But as visible body art becomes more mainstream, many employers find themselves struggling to decide whether and where to draw the lines when drafting a personal appearance policy that works for their business.

As a starting point, body art itself is not a legally protected characteristic so bans are generally permissible. However, employers should be mindful that some tattoos ...

The Older Workers Benefits Protection Act (OWBPA) amended the Age Discrimination in Employment Act (ADEA) back in 1990 to specifically permit bona fide seniority systems and voluntary early retirement incentive plans.  Along with these allowances, the OWBPA mandated strict requirements for ADEA waivers and disclosures for group termination.  The provisions are very technical and have tripped up many unsuspecting employers.

To be effective a waiver must be “knowing and voluntary.”  That sounds straightforward, but the statute specifically spells out what ...

The EEOC officially published proposed rules applying the Americans with Disabilities Act (ADA) to employer wellness programs on April 20, 2015. The public comment period ends June 19, 2015.

Wellness programs, often offered as part of group health plans, are programs designed to improve employee health and reduce health care expense.  Wellness programs vary widely and may include incentives encouraging employees to participate in smoking cessation or weight loss programs, or undergo health risk assessments or biometric screenings.

Despite rules applicable to wellness ...

Despite winter-like weather across much of the country, it is March and that means college students are searching for internships. On January 30, a federal appeals court heard oral arguments on a pair of class action lawsuits in which interns in the film and publishing industries sued for unpaid wages. Although the court has yet to rule, there are steps your organization can take now to avoid this type of litigation.

Under the FLSA anyone who performs work is entitled to compensation. For non-profits, federal regulations clarify that “volunteers” who freely serve public agencies ...

Last week the Indiana Court of Appeals reaffirmed its earlier decision holding an employer liable for its employee’s breach of its privacy policy. After the employee’s husband divulged he had fathered a child with another woman and contracted herpes, the employee searched her employer’s database and accessed the other woman’s prescription records. Of course the employer had a strict confidentiality policy in place. In fact the employee admitted she knew accessing patient information for personal reasons violated company policy. Why then is the company on the hook for ...

Earlier this month the NLRB reversed establish precedent, ruling employers can no longer prohibit employees from using company email to engage in “protected concerted activity” or union organizing efforts during non-work time.

Section 7 of the National Labor Relations Act guarantees all employees, union and non-union employees alike, the right to organize and “engage in … concerted activities for … mutual aid or protection.” But recognizing employers’ property rights in company-managed email systems, the NLRB had long upheld employers’ right to ban ...

On November 6, Indiana’s right-to-work law cleared its most recent major hurdle. The Indiana Supreme Court upheld the law overturning a Lake County decision declaring the law unconstitutional. The Seventh Circuit upheld the law in September. Meanwhile the Michigan Supreme Court announced it will hear argument in January on whether its state’s right-to-work laws properly apply to state employees.

So, Indiana and Michigan and twenty-two other states (the entire south plus several states in the west) now have right-to-work laws on the books and several others have considered ...

We have all heard the mantra “the customer is always right,” but what is an employer to do when a customer’s request conflicts with an anti-discrimination law? As a Florida security firm learned last week, an employment decision that is based on disability violates the Americans with Disabilities Act (ADA) even if the decision is made in direct response to a specific customer complaint. Alberto Tarud-Saieh lost his right arm in a car accident. Later, he was hired by Florida Commercial Security Services as a security guard and assigned to provide security services for a ...

Last week a federal appeals court ruled FedEx drivers are not independent contractors, but rather employees. The decision prompted many to ask, FedEx drivers are classified as independent contractors? In fact they are. According to the decision, Alexander v. FedEx, drivers provide their own vehicles (which must meet detailed specifications), pay their own operating expenses, determine their own routes, (provided they deliver the assigned packages on time) and sign an operating agreement accepting the independent contractor arrangement.

The FedEx case arose because a ...

Maybe. Organizations representing a variety of business and labor interests accepted the NLRB’s invitation to weigh in on whether the board should reconsider its standard for determining when organizations are deemed “joint employers.” Teamsters Local 350 requested the NLRB review a decision which found Browning-Ferris and its subcontractor, Leadpoint (which provides employees to the Browning-Ferris facility), were not joint employers because Browning-Ferris did not share immediate and direct control over the terms and conditions of Leadpoint’s employees ...

A federal court in Indiana ruled recently that a GE manufacturing employee could present her ADA claims to a jury despite concern that accommodating her disability posed a safety risk. Cindy English’s permanent restrictions prevent her from reaching above her head. She was awarded a repair operator position based on seniority but GE’s medical staff concluded her restrictions prevented her from performing the job.

English suggested she could perform the job if she used a stool. GE considered allowing English to demonstrate whether she could perform the job using the ...

Yesterday the Supreme Court upheld Michigan’s ban on affirmative action programs overturning a 6th Circuit Court of Appeals decision which had ruled the ban an unconstitutional violation of the U.S. Constitution’s Equal Protection Clause.

Michigan’s ban on affirmative action was enacted as Article I, Section 26 of its State Constitution and, in relevant part, prohibits governmental entities, including public colleges and universities, from granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Michigan voters passed ...

Earlier today the National Labor Relations Board announced proposed rule changes that will drastically speed the union election process, limit issues employers can raise in the pre-election process, and limit employers’ appeal rights. The proposed amendments are nothing new. Substantively identical changes – dubbed the “Quickie” or “Ambush” Election Rule — went into effect April 30, 2012 but was quickly invalidated when the D.C. Circuit ruled the Board did not have a quorum when it passed the rule changes. The amendments proposed today are open for public ...

The EEOC’s administrative division raked in a record $372.1 million in voluntary payments from private sector employers in fiscal year 2013 (9/2012-9/2013) according to its Performance Accountability Report issued December 16.  This figure, the highest in the Commission’s history, surpassed FY 2012 by nearly $7 million and comes despite sequestration which forced budget cuts, a hiring freeze and mandatory furloughs on the agency.  The Commission reported resolving nearly 14,000 fewer charges in FY 2013 (97,252) than it did in FY 2012, indicating an increase in the ...

Welcome to the Labor and Employment Law Update where attorneys from Amundsen Davis blog about management side labor and employment issues. 

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