President Obama Calls for Revisions to FLSA’s Overtime Regulations

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”)[1]  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.[2]  “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

BYOD: Where the Employee and the Enterprise Intersect

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.”[1] Continue reading

The EEOC Loses Background Check Battle In The 6th Circuit

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

Justices Scoff at Payment for Don and Doff

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

How to Stay Legal and Avoid Risky Drivers

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.

Temporary Impairments May Be Covered Under ADA

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

Sixth Circuit Reverses Summary Judgment For Employer: Genuine Issues Of Material Fact Remain As To Whether Disabled Plaintiff Is Qualified To Perform The Essential Job Functions Of An Excavator Operator

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

Sixth Circuit Affirms Summary Judgment Dismissing Plaintiff’s Wage Discrimination Claims

The Sixth Circuit recently upheld a district court’s grant of summary judgment dismissing a female plaintiff’s wage discrimination claims under the Equal Pay Act (“EPA”), Title VII, and Michigan’s Elliot-Larsen Civil Rights Act.  Foco v. Freudenberg-Nole General Partnership, Case No. 12-2174 (November 25, 2013). The appellate court affirmed that the plaintiff had not established a prima facie case, and in any event, the defendant employer had affirmatively proved that any relevant wage differentials were based on factors other than sex. Continue reading

Benesch/AvatarFleet Webinar: Hiring Drivers & Employers’ Abilities to use Criminal Background Checks

EEOC Versus FMCSA:  No One Wins, But You Don’t Have to Lose.

Recently, the EEOC provided enforcement guidance regarding policies on hiring convicted felons. Benesch and AvatarFleet have teamed up to help you walk the fine line as the government sends the industry somewhat mixed messages.  After attending this webinar, you’ll better understand the latest rulings and how they affect your business.  Most importantly, you’ll learn specific strategies to overcome these divergent governmental perspectives so you can avoid expensive claims of discrimination.  Benesch is a leading authority on transportation law with 75 years of expertise in labor and employment.  AvatarFleet exists to make the world a safer place and provides the industry with best-practice solutions, solving the age-old driver problem.

Join Mark Gardner, CEO of Avatar Fleet and Mark Waterfill, Partner in Benesch’s Labor & Employment Practice Group as they discuss these issues.

Monday, November 11, 2013
11:00 a.m. – noon

Please contact Michael Montagna to register at mmontagna@beneschlaw.com or (216) 363-4196.