Employers beware: the National Labor Relations Board (“Board”) decided that an employer, a car dealership, unlawfully discharged an employee after his lewd outburst in a meeting. On remand from the United States Court of Appeals for the Ninth Circuit, the Board reapplied the four-factor Atlantic Steel balancing test to determine if the employee’s outburst was concerted activity or whether he in fact sacrificed his protection under the National Labor Relations Act (“NLRA”). Continue reading
Investigations and audits of Form I-9 documents by U.S. Immigration and Customs Enforcement (“ICE”) agents are on the rise, and the Obama administration is promising to keep the heat on employers in the coming year. Continue reading
A consent judgment reached stemming from an investigation by the Department of Labor’s Wage and Hour division into Cleveland employer Citywide Protection Services, Inc.’s payment practices serves as a reminder of the importance of adhering to the Fair Labor Standards Act’s requirements. Continue reading
On March 13, 2014, President Obama signed a Presidential Memorandum that directed Secretary of Labor Tom Perez to review the Fair Labor Standards Act (“FLSA”) and revise the regulations that define who qualifies for overtime protection. The Memorandum was spurred by what President Obama sees as the degradation of the spirit of FLSA—if you work more, you are paid more—leaving millions of low-paid salaried workers without overtime protection. “I’m directing Tom Perez, the secretary of labor, to restore the commonsense principle behind overtime,” Obama said. “If you go above and beyond to help your employer and your company succeed, then you should share a little bit in that success.” Continue reading
The proliferation of bring your own device programs – or “BYOD” as it is commonly referred – has drastically changed today’s corporate workplace environment. Employees are availing themselves of smart phones, tablets, and other personal handheld devices to perform the duties that encompass their employment. With more prevalent use of personal devices for work related activity, “an organization must think beyond technological challenges; it must address business policies, management processes and governance as well.” Continue reading
The Sixth Circuit issued a much anticipated ruling on April 9, 2014 related to the Equal Employment Opportunity Commission’s (“EEOC’s”) systemic targeting of employer background check policies. The very first sentence of the Court’s decision very poignantly foreshadows how the EEOC was to fare in the seven page decision authored by Justice Raymond Kethledge, and also points out the difficulty the federal agency will face in light of its own background check policy in which it runs credit checks on applicants for 84 of the agency’s 97 positions: “In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” (emphasis added). Continue reading
Employees who spend time putting on and taking off protective clothes, including flame-retardant outerwear, gloves, boot and hardhats, do not have to be paid for that time when it occurs before and after the work day, the U.S. Supreme Court ruled.
The Court ruled this week that Section 203(o) of the Fair Labor Standards Act does not require employers to pay for the time it takes employees to change clothes, otherwise known as “donning” and “doffing” unless the employees have negotiated otherwise in a labor agreement. In doing so, the justices resolved a question that had split lower courts and made it difficult for employers to know how to act. Continue reading
In November 2012, Benesch and Avatar Fleet hosted a webinar titled, “EEOC vs. FMCSA: No One Wins, But You Don’t Have to Lose.” We recently released a white paper recapping the webinar, “How to Stay Legal and Avoid Risky Drivers: Guidance for Practicing EEOC-Compliant Hiring in the Transportation Industry.” Please click here to take a look.
This past week, the U.S. Court of Appeals for the Fourth Circuit held in Summers v. Altarum Institute that a temporary impairment caused by an injury may be a covered disability under the 2008 Amendments to the Americans with Disabilities Act (“ADAAA”) if the impairment is sufficiently severe to substantially limit a major life activity. This ruling is a marked departure from previous case law which said that temporary conditions, even those lasting up to a year, did not fall within the purview of the ADA. Continue reading
The Sixth Circuit recently reversed a summary judgment granted to an employer that asserted it had terminated the disabled plaintiff because he was no longer qualified to perform the essential functions of his excavator operator position after his left leg was amputated. Henschel v. Clare Co. Rd. Comm., 6th Cir. No. 13-1528 (Dec. 13, 2013). The appellate court held: (1) genuine issues of material fact remained regarding whether hauling the excavator by a manual transmission truck (which the plaintiff could not operate) was an essential function of the excavator operator position; (2) the district court properly determined that reassigning the plaintiff to another position, which was already occupied, was not a reasonable accommodation; and (3) the district court was required to determine whether the plaintiff was otherwise qualified, with or without accommodation, to perform the essential functions of the excavator operator position. Continue reading