Our Employment Updates Blog keeps readers up to date on the latest employment law cases, legal developments, and trends impacting business operations, labor relations, compensation, benefits, and more.

Recent Posts

New Department of Labor Rule Enhances Protections for Farmworkers

The DoL recently announced a final rule aimed at strengthening protections for farmworkers under the H-2A program. This rule, effective June 28, 2024, addresses vulnerabilities and abuses experienced by workers in the program, promoting fair labor standards for all farmworkers in the U.S…

Let the Competition Begin! Everything You Need to Know About the FTC Rule Banning Non-Compete Agreements

On April 23, 2024, the United States FTC issued a sweeping final rule regarding the use of non-compete clauses in employment, creating new prohibitions and other changes to ongoing non-competes.

The U.S. Department of Labor has Finalized Its New Independent Contractor Rule: Here’s What It Means for Your Business

The DOL announced its Final Independent Contractor Rule that defines whether a worker is considered an employee or independent contractor under the FLSA

Navigating the Changing Landscape of Labor Relations: An Update on Recent Developments for Employers

In a world where the only constant is change, the realm of labor relations and employment law is no exception. The landscape is continually reshaped by new regulations, technological advancements, and shifting societal norms. For employers navigating these turbulent waters, staying informed and agile is not just advantageous, it's essential. This article delves into three

NLRB Issues Its Long-Awaited Decision on Employer Handbook Rules: Why All Employers Should Take Note

Introduction On August 2, 2023, the National Labor Relations Board (NLRB) finally issued its long-awaited, watershed decision in Stericycle, Inc., 372 NLRB No. 113, which has nationwide impact on employers of all sizes and industries, whether unionized or not. Under the Board’s new standard, when employers seek to implement specific work rules or policies, the

Supreme Court Rejects “De Minimis” Standard in Determining Whether a Religious Accommodation Constitutes an Undue Hardship

On June 29, 2023, the Supreme Court of the United States issued a landmark decision in Groff v. DeJoy, Postmaster General that will require employers nationwide to rethink the approach to religious accommodations under Title VII of the Civil Rights Act of 1964. This case involved an Evangelical Christian who refused to work on Sundays

You’ve Been Warned – What You Need to Know about New Jersey’s Expanded WARN Act

On January 10, 2023, Governor Murphy signed legislation significantly amending the NJ Warn Act, which became effective April 10, 2023. The most important changes are as follows…

Federal Contractors Beware: EEO-1 Data Will Be Released by OFCCP if Contractors Fail to File Objections by March 3

Written by: Abtin Mehdizadegan, Esq. As many contractors are aware, the Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request from the Center for Investigative Reporting seeking Type 2 EEO-1 Report data from 2016-2020 for all federal contractors and first-tier subcontractors. EEO-1 reports contain over 180 different data points

Non-Disparagement & Confidentiality Clauses Are Illegal in Severance Agreements, NLRB Rules

Companies that make former workers promise not to disparage their former employers in exchange for a severance payment are breaking federal law, the National Labor Relations Board (NLRB) ruled Tuesday. What’s more, it is also illegal to prevent employees from disclosing the terms of their severance packages, the NLRB said. Background Numerous companies tender severance

Attention New York Employers: What to Know About New York’s Expanded “Whistleblower” Law

Written by: Joseph A. Keane, Esq. On January 26, 2022, New York’s expanded “whistleblower” law goes into effect.  The amendments to Section 740 of the New York Labor Law will increase the categories of covered workers protected by the statute,  add protected activities that entitle an employee to whistleblower protection, enhance worker protection by broadening

Ten States Sue To Stop The Cms Vaccine Mandate For Healthcare Workers

Written by: Jacqueline Voronov, Esq. And the legal challenges to President Biden’s vaccine mandate keep on coming…   Missouri, Iowa and a coalition of eight (8) other states have filed a lawsuit against President Joe Biden and key administration officials over the CMS requirement that health care workers must be vaccinated against COVID-19 as a condition

The Uncertain Future of Non-Competes After President Biden’s July 2021 Executive Order

Written by: Allison Averbuch, Esq. and Baylee Culverhouse, Esq. In July 2021, President Biden issued a comprehensive Executive Order to tackle “the most pressing competition problems” facing the country’s economy.[1] The Order includes 72 initiatives aimed at promoting competition—one of which encourages the Chair of the Federal Trade Commission (FTC) “to exercise the FTC’s statutory

Are Employer-Mandated Vaccinations Coming to an Office Near You?

Written by: Allison Averbuch, Esq. In a speech on September 9, 2021, President Biden announced that his administration asked the Department of Labor to develop emergency rules requiring all employers with 100 or more employees to ensure their workforces are fully vaccinated against COVID-19 or show a negative test at least once a week. Some

NYC Business Owners Must Accommodate the “Key to NYC” Vaccine Mandate

Written by: Joseph A. Keane, Esq. New York City Mayor Bill De Blasio’s Emergency Executive Order 225, otherwise known as the “Key to NYC” vaccine mandate, took effect on August 17, 2021, to combat the highly transmissible Delta variant of COVID-19. In a continuing effort to mitigate the spread of COVID-19 and protect against severe

DOL Publishes Long Overdue COVID Safety Rules For Health Care Settings

Written by: Jacqueline Voronov, Esq and Robert Romeo It has been well over a year since the start of the coronavirus pandemic, and the Department of Labor (“DOL”) has finally issued its highly anticipated COVID workplace safety rules.  In January 2021, President Joe Biden issued an Executive Order ordering the DOL to consider issuing an

Eleventh Circuit Holds Websites Are Not Places of Public Accommodation and Rejects the Nexus Standard

Written by: Mariel E. Smith, Esq. In a recent decision, Gil v. Winn-Dixie Stores, Inc., the Eleventh Circuit held that websites are not “places of public accommodation” under Title III of the Americans with Disabilities Act (ADA).  The ADA prohibits discrimination against individuals on the basis of disability in the full and equal enjoyment of

Can Employers Mandate Arbitration of NJLAD Claims? The Monmouth County Superior Court Says Yes

Written by: Jacqueline Voronov, Esq. and Joseph A. Keane, Esq. A recent New Jersey Superior Court decision held that the Federal Arbitration Act (“FAA”) trumps the 2019 Amendment to the New Jersey Law Against Discrimination (“NJLAD”) that purported to ban mandatory pre-dispute employment arbitration agreements. Back on March 18, 2019, New Jersey Governor Phil Murphy

“Employers in Wait-and-See Mode Over Possible DOL Guidance on Refusal to Work,” Society for Human Resource Management

In an article published by the Society for Human Resource Management on February 12, 2021, Partner Jacqueline Voronov is quoted discussing employees’ rights to refuse unsafe work and still receive unemployment compensation under a proposal in the Biden administration’s January 22 Executive Order. But legal experts have expressed concern that the guidance could lead to

CMS Issues “Holiday Leave Recommendations Letter” for Nursing Homes, Residents, Resident Family Members, and Staff

Written by: Laura Hall Cartner, Esq. and Kathleen Wilkinson, Esq. This year, the holiday season certainly looks a little different in light of the ongoing COVID-19 pandemic. With varying limitations on visitation since March, this year will host a particularly unique holiday season for our nations nursing homes, caregivers, residents and their families. On November

New York Federal Judge Strikes Down Several Key Parts of COVID-19 Paid Leave Regulation Including The Definition of “Health Care Provider”

Written by: Jacqueline Voronov, Esq. and Jeffrey M. Daitz, Esq. In a very pro-employee ruling, the U.S. District Court for the Southern District of New York struck down four (4) key provisions of the U.S. Department of Labor’s (“DOL”) regulations implementing the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”).  The August

US Supreme Court Holds That Title VII Protects Homosexual And Transgender Employees

Written by: Melanie V. Slaton, Esq.,  Mariel E. Smith, Esq., and Nicholas J. Garcia, Esq. On June 15, 2020, the Supreme Court of the United States (“SCOTUS”) delivered the landmark opinion in Bostock v. Clayton County, Georgia and broadened Title VII liability to include actions by an employer based on the homosexuality or transgender status of the individual

What Should Employers Do When Employees Refuse To Return To Work For Fear Of COVID-19?

Written by: Melanie V. Slaton, Esq.,  Mariel E. Smith, Esq., and Nicholas J. Garcia, Esq. As states struggle through the process of re-opening in the wake of COVD-19, many employers are also wrestling with the question of what to do about employees who refuse work due to safety concerns or in order to take advantage

The Health Care Provider Exemption to Emergency Paid Sick Leave in the Families First Coronavirus Act

Written by: Jacqueline Voronov, Esq. and Jeffrey M. Daitz, Esq.  On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law.  The FFCRA modified the Family and Medical Leave Act (FMLA) and created a new paid sick leave policy to assist workers who contract COVID-19, are caring for family members with


Written by: Jacqueline Voronov, Esq., Jeffrey M. Daitz, Esq., and Christopher Eads, Esq. Perhaps bipartisan bills really do exist? On March 14, 2020, the House of Representatives passed the Emergency Families First Coronavirus Response Act (“EFCRA”), a sweeping bill aiming to soften the economic blow that many Americans are expected to feel as stores close,

Coronavirus & the Workplace: Fast Facts for Employers

Written by: Jacqueline Voronov, Esq.  and Jeffrey M. Daitz, Esq. The coronavirus (COVID-19) outbreak that originated in Wuhan, China has spread to at least 95 countries and has sickened more than 100,000 people, leading to increased anxiety and confusion across the globe.  Amidst fears of potential business disruption, the spread of this novel virus serves

Enactment of the CROWN Act Warrants Review of Employer Policies Governing Grooming and Appearance Standards

Written by: Mariel Smith, Esq. Employers should take note that the CROWN Act is now law in several states and is being considered in many others.  The CROWN Act, which stands for “Create a Respectful and Open World for Natural Hair,” is a law that prohibits discrimination based on hairstyle and hair texture. It is

Health Care Employers’ Title VII Obligations to Prevent & Remedy Harassment & Discrimination Extend to Patients

Written by: Jacqueline Voronov, Esq. and Jeffrey Daitz, Esq. What You Already Know… Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees, including federal, state

Georgia’s New Long-Term Care Background Check Program

On May 7, 2018, then Governor Nathan Deal signed Georgia’s new Long-term Care Background Check Program into law with the purpose of promoting public safety and providing for comprehensive criminal background checks…

Department of Labor Issues New Overtime Rules

Written by: Mariel Smith, Esq. On September 24, 2019, the Department of Labor (DOL) issued its final rule modifying the Fair Labor Standards Act (FLSA) overtime rules for executive, administrative, professional, computing positions (white collar), and highly compensated employees. The rule goes into effect on January 1, 2020 and it increases the minimum salary that

New Jersey’s Wage Theft Act Just Stiffened Fines & Penalties Against Employers That Don’t Pay Proper Wages – A Lot!

Written by: Jacqueline Voronov, Esq. and Jeffrey Daitz, Esq.  Hey New Jersey business owners- listen up! The State of New Jersey wants you to know that it is definitely pro-employee when it comes to wage and hour laws.   Under the robust new Wage Theft Act (S-1790), touted as the “toughest wage theft statute in the


Written by: Jacqueline Voronov, Esq. The #TimesUp and #MeToo movements just bagged MAJOR wins in New York on Wednesday when state lawmakers passed sweeping anti-harassment legislation that will lower the bar for what qualifies as sexual harassment, among other things.  These changes build on a slate of laws that Gov. Cuomo signed last year amid

New Jersey Has Outlawed Confidentiality Provisions In Employment Discrimination Settlements

Written by: Jacqueline Voronov, Esq. and Jeff Daitz, Esq. That’s right! Effective March 18, 2019, employment contracts, discrimination, harassment or retaliation related settlement agreements can no longer contain non-disclosure agreements (“NDAs”) against the employee if it has the “purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment…” This warrants

HBS Alert- New Overtime Rules: What You Need To Know

Written by: Allison Averbuch, Esq. On March 7, 2019, the Department of Labor issued a proposed rule change that would raise the salary test for exemption from overtime pay from $23,660 per year ($455 per week) to $35,308 per year ($679 per week). What does the proposed rule change mean for my business? If the

NLRB Returns to Employer-Friendly Approach in its Independent Contractor Analysis

Written by: Allison Averbuch, Esq. In January, the National Labor Relations Board (NLRB), in SuperShuttle DFW, Inc., walked back Obama-era collective-bargaining decisions. Overruling NLRB precedent established during the Obama administration, the SuperShuttle decision marks a return to the common-law agency test for determining whether workers are independent contractors or employees. If workers are considered independent

New DOL Opinion Letter: Tipped Employees in Dual Jobs

Written by: Don Benson, Esq. The U.S. Department of Labor issued a new Opinion Letters on November 8, 2018, which will be of interest to many employers with tipped employees. History of Issue. On 01/16/2009 the DOL issued an Opinion Letter which was withdrawn for further study on 03/02/09.  The DOL has now reissued that earlier

Are Your Employee Driving Policies Compliant in Georgia?

By: Don Benson, Esq. and Michael Chas Whitehead, Esq. If your company has employees who drive on the job in Georgia, significant changes to Georgia law go into effect on July 1, 2018. Key changes include (1) restricting drivers from physically holding or otherwise supporting their devices while driving unless it is a wearable voice-based

Arguing for Summary Judgment Against Alternative Theories of Proving Discrimination

By Don Benson, Esq. A new Eleventh Circuit case is being criticized for changing the standard for summary judgment in a discrimination case. Jefferson v. Sewon America, Inc., No. 17-11802 (June 1, 2018) This is incorrect. Although it does not raise the bar for employers on summary judgment and does not change prior case law; it does emphasize an important point

Summer Interns: Paid or Unpaid?

Written by: Don Benson, Esq. Every summer, many employers take on “interns” and ask whether the intern must be paid. If interns, trainees and students are “employees” of a “for-profit” employer under the Fair Labor Standards Act, then they must be paid minimum wage and overtime. Courts have used the “primary beneficiary test” to determine whether

Columbus Partner Melanie Slaton on the Importance of Having Harassment Policies for the Workplace

In this short informative video presented by Columbus CEO, Columbus partner Melanie Slaton discusses the importance of having a harassment policy for your workplace and why employees should have a better understanding about what harassment is to help prevent issues from arising.

USCIS to Conduct Interviews for Employment Based Adjustment of Status Cases

by:  Ashik Jahan, Esq & Carolin Esterl On August 28, 2017, USCIS (United States Citizenship and Immigration Services) made an announcement stating that they will begin to “phase-in” interviews for employment-based cases effective on October 1, 2017. The announcement stated that “adjustment of status applications based on employment”—i.e., categories EB-1 through EB-5—will be affected.  At this

Proving Effective Communication With Deaf Patients

By Don Benson, Esq. and Eric Hoffman, Esq. When accommodating a deaf patient, what evidence proves effective communication under Title III of the Americans with Disability Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”) of 1973? A new Eleventh Circuit case [here] declares that the correct standard examines whether the deaf patient experienced an impairment in

Is “Hispanic” A Race Or An Unprotected Ethnicity Under § 1981 And Title VII?

By Don Benson, Esq. The Second Circuit issued an opinion on February 16, 2016, holding that “Hispanic” is a race for the purposes of both 42 U.S.C. §1981 and 42 U.S.C. § 2000e, Title VII. Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016). The Court rejected the employer’s argument that promotion of a white Hispanic candidate

The ADA and Job Transfers

Written by: Don Benson, Esq. On December 7, 2016, the Eleventh Circuit Court of Appeals found that a Hospital did not violate the Americans With Disabilities Act when it refused to allow a disabled employee to transfer to another, open position when the Hospital had better qualified candidates. EEOC v. St. Joseph’s Hospital, Inc. The ADA protected

Injunction Stops New DOL Rule Increasing Salary Level Test: Now What?

Written By: Don Benson, Esq. Many employers have been asking what is next step for them in light of the injunction issued 112/22/16 in the U.S.D.C. Texas holding that the DOL may not impose the new higher salary level for jobs exempt from overtime under the executive, administrative or professional exemptions of the federal Fair Labor

Do Employees Get Time Off to Vote?

Written by: Don Benson, Esq. With every election, employers need to revisit their rules on letting employees off to vote, and whether such leave needs to be paid leave. For the most part, this will be governed by the state law of where the employee votes.  State laws differ significantly and change frequently. In the Southeast,

Congressional Move to Delay DOL’s Overtime Rules

Written by: Don Benson, Esq. Despite the threat of a presidential veto and numerous Democratic objections, the U.S. House of Representatives voted 246-to-177 on September 28, 2016 to delay by an additional six months the U.S. Department of Labor’s Rule raising the threshold for exemption to overtime pay. DOL’s new Rule is set to take effect


Written by: Don Benson, Esq. Congress enacted legislation in November of 2015 requiring federal agencies to adjust their civil penalties to account for inflation. OSHA’s maximum penalties were last adjusted in 1990. The new penalties will increase by 78%. Effective August 1, 2016, any citations issued by OSHA     after that date will be subject to

OSHA’s New Rule On Post-Injury Drug Testing

Written by: Don Benson, Esq. and Sam Sykes, Esq. OSHA’S NEW ELECTRONIC DATA REPORTING REQUIREMENTS, (29 CFR § 1904.35(b)(1)(i)), effective August 10, 2016,  also restrict an employer’s ability to impose a blanket demand of post-injury drug testing. OSHA considers such a blanket rule to be retaliatory and to discourage employee reporting of workplace injuries. Employers can avoid

New Guidelines For Treatment of Transgender Students

Written by: Sean Cox, Esq. and Don Benson, Esq. This month the United States Departments of Education and Justice issued Guidelines intended to direct educational institutions in how Title IX requirements apply to transgender students, or students whose sex assigned at birth differs from their gender identity. A copy of the Guidelines and suggested practices can be found here. The

New Federal Trade Secrets Law Almost Here

Written by: Don Benson, Esq. The Defend Trade Secrets Act (“DTSA”),  passed by both houses of Congress, is headed to President Barack Obama for his signature and his office has stated it “strongly supports” the legislation. On April 4, the U.S. Senate passed the DTSA by a vote of 87-0. The Senate bill passed in the House

Five Employment Law Issues for Risk Managers Throughout 2016

By: Don Benson, Esq. Risk Managers can expect to be confronted in the remainder of 2016 with five growing trends in employment law that require organizational attention and planning: Protecting Trade Secrets Protecting your competitive edge is more important than ever. Non-compete, trade secret and related litigation increases as employers attempt to prevent present and former

Assisted Living Facility Miss-Classifies Employees As Independent Contractors: Owes $56,000.00 To Nine Employees

Written by: Don Benson, Esq. The U.S. Labor Department announces in a March 16, 2016 press release that a Tampa assisted living facility must pay more than $56K in back wages to nine employees.  Two employees were miss-classified  as independent contractors. Seven other employees were miss-classified as exempt and paid on a salaried basis without over-time pay. Toria’s

New EEOC Lawsuits Seek to Expand Title VII to Protect Sexual Orientation

By Don Benson The EEOC has filed two new cases alleging sex discrimination based on sexual orientation: • In EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., No. 2:16-cv-00225-CB, filed March 1, 2016). The EEOC sued Scott Medical Health Center, P.C., a provider of pain management and weight loss services, alleging that it discriminated against charging party

New EEOC Procedure Suggests Caution In Drafting Position Statements

By Don Benson and Sean Cox The EEOC implements new nation-wide procedures  providing that all Charging Parties will be provided a copy of the respondent employer’s statement during the course of the investigation, not just after the investigation is completed. This new procedure will apply to all employer Statements of Position [“SOP”] requested after January 1, 2016. Prior to this

Eleventh Circuit Clarifies Standard for Mixed-Motive Discrimination Cases.

Written by: Don Benson and Phil Friduss On February 22, 2016, the Eleventh Circuit Court of Appeals clarified the standard to be used in considering motions for summary judgment in allegations of mixed motive discrimination based on circumstantial evidence. Quigg v. Thomas County School District, No. 14-14530 (11th Cir. 2016).  The McDonnell Douglas shifting burden analysis is not to be applied.

New OSHA Rule On Respirable Crystalline Silica will Affect Construction Employers.

Written By: Don Benson and Crighton Allen OSHA is proposing a new construction standard to protect workers from exposure to respirable crystalline silica. The proposed Regulation has been forwarded by OSHA to the Office of Management and Budget for final review. OSHA’s proposal, generally, is to lower the existing permissible exposure limits (adopted in 1971) by about 50%.

Failure to Pay for Water, Bathroom and Rest Breaks: $1.75 Million

Written by: Don Benson, Esq.  A December 16, 2015, federal court decision found that the pay of telemarketing employees was improperly docked for taking water, bathroom and rest breaks- virtually all time not spent making sales calls was treated as unpaid time. Perez v. American Future Systems, Inc., civ. No. 12-6171 (E.D. Pa. 2015). This unpaid time when

Employee Theft Gives A Lesson In Data Security

Written by: Richard Sheinis, Esq. The Georgia Court of Appeals just issued an opinion in a case that provides a good lesson on the importance of protecting data against employee theft. In Lyman v. Cellchem Int’l, LLC,1 two former employees of Cellchem were accused of using a thumb drive to copy confidential computer files, including financial data

Government Contractors: New Obligations for 2016

Recent Executive Orders and proposed Regulations are creating significant new obligations for many federal government employers in 2016. MINIMUM WAGE INCREASE:  Executive Order 13658. Beginning Jan. 1, 2016, the minimum wage for work performed under covered federal contracts will increase to $10.15. Employees working under covered federal contracts who receive tips as part of their

FMCSA Reduces Random Drug Testing Percentage For 2016

The Federal Motor Carrier Safety Administration [“FMCSA”] issued on December 21,  2015, a drug testing program change, effective January 1, 2016, reducing the requirement for random testing from 50 percent to 25 percent of the average number of driver positions for drivers of commercial motor vehicles [CMVs] requiring commercial driver’s license [CDL]. FMCSA Management Information System data

Haleigh’s Hope Act Is Georgia’s New Medical Marijuana Law

You can add Georgia to the list of states that have a medical marijuana law. As of April 16, 2015, Haleigh’s Hope Act permits patients suffering from cancer (if the cancer is end stage or the treatment produces related wasting illness, recalcitrant, nausea and vomiting), ALS or Lou Gehrig’s Disease (when it is severe or

The FLSA: Is Pre- and Post-shift Work Compensable?

Generally, workers are entitled under the federal Fair Labor Standards Act to be paid for “work time”. Workers do not receive pay or overtime for non-work activities before or after their shift. On December 9, 2014, the Supreme Court issued a new employer-friendly decision regarding whether certain pre- and post-shift work is compensable time. In Integrity

Can’t You Hear the Whistle Blowing: Are Your Employees Now Protected Under the Sarbanes-Oxley Whistleblower Provisions?

Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation under the whistleblower protection of the Sarbanes-Oxley Act? Yes, according to a recent Supreme Court decision. Privately-held employers need to be proactive to stay in front of this potential wave of employment litigation, as they no longer can assume

New DOL Rules on Same Sex Marriage and the FMLA

Under the current law, legally married couples can apply for emergency leave to care for their partners under the Family and Medical leave Act if they reside in a state where same-sex marriage is legal.  The U.S. Department of Labor’s Wage and Hour Division today announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of

Tennessee Employers and Social Media

Tennessee’s new law prohibits employers, including government entities, from requesting or requiring access to the private social networking or online accounts of employees and job applicants. The Employee Online Privacy Act of 2014, signed by Governor Bill Haslam on April 29, 2014, becomes effective January 1, 2015. Under the new Act, employers of any size may

The FMLA and Holidays; Paid or Unpaid?

As we approach July 4th and Labor Day, employers are often asked about how Company approved holidays interact with FMLA leave. DOES THE HOLIDAY COUNT AGAINST THE 12/26 WEEKS TOTAL? An employee is entitled to up to 12 workweeks of FMLA leave for most qualifying reasons or up to 26 workweeks of FMLA for military

Interpreters for Deaf Patients and the ADA

A federal district court in Florida holds that a hospital providing medical services to deaf patients could use video relay interpretation, passed written notes, and gestures to meet the hospital’s obligation under the Americans With disabilities ACT [“ADA”] and rejected the plaintiffs’ claim that a live interpreter was necessary to afford effective communication. Title III


Three recent Court of Appeals of Georgia opinions discuss the impact of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., on disputes in Georgia.  These cases further demonstrate that disputes arising from arbitration agreements governed by the FAA are much more likely to actually be arbitrated than are disputes arising from agreements

Senate Passes Bill to Ban Discrimination Against Gays, Transgenders

            The Employment Non-Discrimination Act (“ENDA”, S. 815), originally introduced in Congress in 1994, passed the Senate yesterday by a 64-32 vote.  ENDA would ban discrimination in the workplace on the basis of an individual’s perceived sexual orientation or gender identity.             Similar to the

Washington is the Latest State to Prohibit Employers from Asking Employees for Their Social Media Passwords

It is not difficult to figure out the public sentiment on the issue of employers forcing job applicants or employees to provide their social media passwords or credentials.  Washington has just become the 11th state with a law banning employers from such conduct.  The other 10 states that have similar laws governing social media privacy

“New Supreme Court Ruling: Who is a “Supervisor” in Harassment Cases?”

The U.S. Supreme Court issued Vance v. Ball State University on June 24, 2013, clarifying who is a “supervisor” in harassment cases brought under Title VII.  As explained below, an employer may be strictly liable for the actions of a “supervisor” who can impose a “significant change in employment status, such as hiring, firing, failing to promote,

North Carolina is the Latest State to Propose Barring Employers from Accessing Employee Social Media Accounts . . . and Why These Laws Can be Troublesome for Business

     The North Carolina House recently passed the Job and Education Privacy Act (House Bill 846), which would prohibit employers from requesting that an employee or job applicant grant access to their personal electronic account or social networking account.  The law would also prohibit employers from tracking an employee’s personal electronic communication device, such


A recent study by the Ponemon Institute revealed that employees are causing company’s to lose intellectual property (IP) with startling frequency.  Perhaps the most troubling aspect of this behavior is the lack of knowledge of the companies that their IP is at risk. The study results, based on survey responses of 3,317 people in the


At the end of 2012, the Second Circuit Court of Appeals issued an opinion allowing an employer in Connecticut to bring suit in Connecticut against its employee for electronic data theft, even though the employee actually lived and worked in Canada. In MacDermid, Inc. v. Dieter[1], MacDermid is a specialty chemical company located in Waterbury, Connecticut. 

“LPNs held to be Supervisors in Union Campaign”

On October 2, 2012, the Eleventh Circuit held that licensed practical nurses (LPNs) employed at a long-term health care facility were not supervisors under the National Labor Relations Act (NLRA). This rejection of the National Labor Relations Board’s prior ruling can help long-term healthcare employers fight efforts to unionize LPNs at their facilities. Lakeland Healthcare Associates, LLC

“Time Off to Vote: Georgia”

Employers are required to give employees up to two hours unpaid time off to vote in Georgia. The employee must be registered and qualified to vote. The employer can insist that the time off be taken before or after regular work hours if the polls are open more than two hours before or after the


The EEOC announced on September 4, 2012,  a draft StrategicEnforcement Plan targeting enforcement of pregnancy anti-discrimination laws. Charges of Discrimination raising pregnancy discrimination would receive increased investigatory attention and resources to ensure timely and quality enforcement action. Meritorious cases raising SEP or district priority issues should be given precedence in litigation recommendations and selection over non-priority issue cases.  


Many health care and dental organizations actually treat their employees. Often former patients also apply for work. The EEOC recently filed a lawsuit against Aurora Health Care, Inc. accusing the hospital system of rescinding two job offers because of information obtained from the applicants’ medical records when each had been a patient. The hospital offered the first


When is a second request for indefinite leave required by the Americans With Disabilities Act (“ADA”)? What if the employee can perform most of the essential functions of the job while on indefinite leave, but can not provide a reasonable estimate of a return date when he/she can eventually perform allof the essential functions of the job? In Robert


After his company was acquired, plaintiff was informed in April of 2005, that a friend and colleague had been terminated because he refused to accept a lower wage in his new position within the new company structure. In response to this action, plaintiff testified that he was very upset and wanted to tell his bosses


Can an employer order a troubled employee to obtain psychological counseling as a condition for keeping his/her job? The Sixth Circuit Court of Appeals has answered that such a request requires compliance with the Americans With Disabilities Act (ADA) as a request for a medical examination limited by all of the usual ADA restrictions on

Confidentiality and Internal Investigations:

Attacks by NLRB and EEOC Employers conduct internal investigations for a variety of reasons. Sometimes it is an on-going internal audit to promote compliance. Other times the investigation is the response to a complaint, inventory shortages, rumor, or in anticipation of litigation. Often times in healthcare situations, it is part of the peer review process

“How to Handle Possible January Budget Sequestration under WARN”

“How to Handle Possible January Budget Sequestration under WARN” On July 30, 2012, the U.S. Department of Labor (DOL) issued Training and Employment Guidance Letter No. 3-12, offering guidance on how  federal contractors should comply with the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. § 2101-2109, when facing potential layoffs if federal funds are automatically

EEOC Attacks TB Testing Program at Rehabilitation and Nursing Facility

A rehabilitation and nursing company refused to let an employee start working who tested positive on a preliminary Tuberculosis skin test. In its lawsuit,  (EEOC v. Health Partners, Inc., Case  No. 2:11-CV-12024), filed in U.S. District Court for the Eastern District of  Michigan, the EEOC charged that Health Partners violated the Americans with  Disabilities Act

Alabama: No Employee Texting or Email While Driving

Effective August 1, 2012, Alabama law now prohibits drivers from writing, sending or reading a text or email while operating a motor vehicle. First, second and third or subsequent offenses may lead to fines of $25, $50 and $75, respectively. The law allows a driver to contact  emergency services and send a text or email while parked.

Surface Transportation Assistance Act: Whistleblower Protection Final Rule issued by OSHA

OSHA issued its Final Rule implementing the whistleblower provisions of the Surface Transportation Assistance Act [STAA]. As a result of the 9/11 Commission Act Amendments, the whistleblower protections of the STAA were expanded to reach beyond safety to include security issues. The STAA protections now make it unlawful to retaliate because an employee: ·   has filed (or is believed

Health Care Reform Upheld: Employers Must Plan to Comply

The U.S. Supreme Court has upheld the massive health care reform law, the Patient Protection and Affordable Care Act (ACA). While the law’s individual mandate has survived constitutional scrutiny, many challenges and questions for employers remain. Employers must make critical decisions about their health care coverage as key provisions of the ACA become effective. Employer

Supreme Court Holds Pharmaceutical Sales Reps Are Exempt Outside Sales Employees

On June 18, 2012, the U.S. Supreme Court issued its long awaited opinion in Christopher v. Smith Kline Beecham Corp. finding that Pharmaceutical Sales Reps (“PSRs”) were exempt from the overtime requirements of the Fair Labor Standards Act. The PSRs claimed that they were not within the “outside sales” exemption because their primary duty was not “sales”

Social Media Policies and the NLRB’s May 30, 2012 Report

The NLRB’s Office of General Counsel issued on May 30, 2012, Memorandum OM 12-59; yet another memo on Social Media Policies adopted by employers. This report criticizes seven new policies and follows up on the August 2011 and January 2012 reports. Unfortunately for employers, the latest report identifies what such policies can not say, rather than

Tennessee Tipped Employees Can Now Waive Meal Breaks

Tennessee’s wage and hour statute requires that any employee scheduled to work six consecutive hours must be provided with a thirty (30) minute unpaid meal break (unless the nature of the business provides “ample opportunity [for employees] to take an appropriate meal break.”). The break cannot be scheduled during or before the first hour of

Manager Lacks Title VII Claim Based on Marriage to Illegal Immigrant

A bank sales manager who alleged she was fired because of her marriage to an undocumented immigrant from Mexico lacks a national origin discrimination claim  under Title VII of the Civil Rights Act of 1964, according to the U.S. Court of Appeals for the Seventh Circuit decision on May 21, 2012, in Cortezano v. Salin

Summer Interns: Paid or Unpaid?

Every summer, many employers take on “interns” and ask whether the intern must be paid. Interns, trainees and students are employees and must be paid minimum wage and overtime according to the requirements of the federal Fair Labor Standards Act unless all of the following apply:     1.   The training, even though it includes

NO FMLA VIOLATION: Fired for Attending Octoberfest while on FMLA Leave.

The Sixth Circuit Court of Appeals [covering Tennessee, Kentucky, Ohio, Michigan] upheld the employer’s termination of an employee out on FMLA leave who was seen by several other employees at Cincinnati’s Octoberfest celebration. The employee was fired for medical fraud under a paid leave policy while also on FMLA leave. Seeger v. Cincinnati Bell Tel. Co. The employee was out for

EEOC Guidance on Criminal Record Checks

The EEOC issued on April 25, 2012, its final, updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under title VII of the Civil Rights Act of 1964.” Title VII prohibits employers from (a) treating job applicants with the same criminal records differently because of their race, sex, color, religion

Congress Seeks to Ban Practice of Employers Asking For Social Network Passwords

By: Richard Sheinis The controversial issue of employers demanding that job applicants provide their login and password for their social networking account such as Facebook, has made its way to the U.S. Congress.  The Social Networking Online Protection Act (“SNOPA”) was introduced in the House of Representatives on April 27.  The Act proposes a $10,000

Worker’s Compensation Denial: RICO Claim Recognized

The Sixth Circuit Court of Appeals has allowed a lawsuit based on the Racketeer Influenced and Corrupt Organizations Act (RICO) based on an alleged fraudulent wrongful deprivation of an employee’s entitlement to benefits under Michigan’s Worker’s Disability Compensation Act.  Brown v. Cassens Transport Co., 6thCir., No. 10-2334, 4/6/12) Six current or former employees of the trucking

Intensive Care Nurse: Regular Attendance and the ADA

In the case of a neo-natal intensive care nurse, regular attendance really is an essential function of the job. On April 11, 2012, the Ninth Circuit Court of Appeals rejected an Americans With Disabilities Act lawsuit brought by a nurse with fibromyalgia who requested as a “reasonable accommodation” to opt out of the hospital’s attendance

Increased Overtime Lawsuits

A recent USAToday article “More American Workers Sue Employers for Overtime Pay” notes a reported 32% increase in such lawsuits from 2008 levels. The most common overtime claims focus on: Working off the clock through breaks and before or after regular hours; Misclassified jobs exempted from overtime incorrectly; Smartphones and other technology involving emails and


Each year since 2004, Verizon has released a Data Breach Investigative Report.  The 2012 Report (based on 2011 data) is now available.  The Report, which contains a compilation and analysis of reported breaches, should be of interest to business owners, insurers, auditors, security experts, and others involved in this field.  This Special Edition of Data Protection Weekly will provide

Employee Blog Creates Employer Liability

A California Appeals Court confirms in Espinoza v. Orange County an employee’s disability harassment claim based in part on a co-employee’s off-work blog. Plaintiff filed a complaint against the county government defendant for discrimination based on disability, harassment based on disability, retaliation, and failing to prevent harassment. When plaintiff was born his right hand had no

Nursing Home Arbitration Agreement Enforced

In Marmet Health Care Center, Inc. v. Brown, the U.S. Supreme Court overruled the West Virginia Supreme Court’s refusal to enforce a pre-dispute arbitration agreement governed by the Federal Arbitration Act (FAA) based upon a state public policy prohibiting arbitration of claims alleging personal injury or wrongful death against nursing homes. “When the state law prohibits

Las Vegas Spa Workers Appeal Age Discrimination Loss

Six women, ages 47 to 60, appeal the dismissal of their age discrimination lawsuit challenging their terminations from employment. After Phil Ruffin purchased the Treasure Island hotel and casino in Las Vegas, his wife, a former Miss Ukraine (pictured here with Donald Trump) allegedly told the spa manager that she “wants young, beautiful girls here.” A

Georgia Legislation Overturns Rule Requiring Attorneys to Answer Garnishments

Generally, corporations appearing in Superior and State Courts in Georgia must be represented by an attorney.  Although this requirement existed, it had generally not been applied to garnishment actions until September 12, 2011. On that date, the Supreme Court of Georgia adopted a state bar advisory opinion stating that a corporation’s response to a garnishment issued in a Georgia Superior

Healthcare Provider’s TRICARE Participation Does Not Trigger Affirmative Action Obligations

In November of 2010, we advised clients of a new Administrative law judge decision issued October 18, 2010, proclaiming that hospitals and long term care facilities that accepted TRICARE funds would be considered by the OFCCP to be government contractors subject to affirmative action plan requirements. TRICARE is the healthcare program that covers active duty

ADA: New Swimming Pool and Spa Regulations

An upcoming March 15, 2012 deadline for the 2010 ADA Standards imposes on covered hoteliers and hospitality employers additional accessibility standards  for newly constructed recreational facilities such as pools and spas built after March 15, 2012.   The new standards on access to such facilities require either adding a pool lift or renovating the swimming pool and spa entirely

When Does an Employee Act “Without Authorization” When Accessing Company Data

   A case recently argued before the entire Ninth Circuit Court of Appeals highlights the importance of having company policies that not only limit what data employees can access, but which also place specific limitations on how employees can use the data to which they are allowed access.             The Ninth Circuit is reviewing its earlier decision


Many companies encourage, or in some cases even require, employees, to use social media to further their business objectives.  Employees use LinkedIn, Twitter, and Facebook to network, build relationships, contacts, and goodwill.  When the employee leaves the company, can the employee take all of this with her to her new position, possibly for a competing company, or

Data Protection

A recent case in the Federal District Court for the Northern District of California highlights two important emerging issues in the data protection arena.  The first issue is the concern of data breaches by employees and ex-employees.  The second issue is the understanding of the legal complexities in interpreting applicable statutes.             In Nexsales Corp.

EEOC Charges Hit Record High

The EEOC released statistics in January showing a record number of Charges of Discrimination filed by private sector employees in 2011. Although some EEOC Charges contain multiple types of claims, the 99, 947 total charges filed consisted of: 35.4%  race discrimination, 25.8%  disability discrimination, 23.5%  age discrimination, 11.8%  national origin discrimination, 4.2%    religious discrimination, 2.8%    color based discrimination, 0.9%    pay discrimination. Of this total

Attorneys’ Fees

Have you ever received a lawsuit that contained such baseless employment law claims that you wanted to lash out?  Many employers have, but most employers do not file counterclaims, and here is why:  the Plaintiff was awarded almost $250,000.00 in attorneys’ fees and expenses last month by a Georgia Federal Court. The Plaintiff had filed a gender and

Minimum Wage Changes in 2012

The federal minimum wage of $7.25 per hour is not currently scheduled to increase in 2012. Alabama, Georgia, South Carolina, and Tennessee are not scheduled to enact changes. In fact, Alabama, South Carolinaand Tennessee do not have individual state minimum wage statutes and therefore follow the federal minimum wage. Georgiahas a lower minimum wage of $5.15, so that it defers to the federal minimum

USERRA Rights Expanded for National Guard and TRICARE and Affirmative Action Plans

The President is expected to sign a Conference Report approved by both the House and Senate to the National Defense Authorization Act for fiscal year 2012. The Conference Report addresses two issues important to employers. I. EXPANDED USERRA RIGHTS. First, the bill extends some USERRA right to members of the National Guard called up to conduct homeland security

Using Facebook to Obtain Information During Discovery

    “Digging up dirt” on a former employee who filed suit against your company can often provide useful ammunition to challenge their credibility.  Social networking sites can be a fertile garden for your digging, but how do you get access to the former employee’s social media site?  Is it legal to access their Facebook page, or are you

The EEOC has wasted little time in taking advantage of the Americans With Disabilities Act Amendment Act (“ADAAA”).  In the last days of August the EEOC filed 15 discrimination suits against major companies, three (3) of which allege allegations of violations of the ADAAA.  As expected, these new cases do not focus on whether the

Protect Your Business By Protecting Your Computers

A case out of New York highlights the importance of employers protecting their computers and electronically stored data from disgruntled and departing employees.  In ­MidAmerica Productions v. Derke, 2010 NY Misc. LEXIS 6676, employees who left their employer to start a competing business were accused of improperly accessing e-mail accounts, and then installing software to delete files

In an interesting settlement, mainly because of some unusual facts, Dresser Rand Company settled a religious discrimination lawsuit with the EEOC for $110,000.  It seems a Dresser Rand employee, who is a Jehovah’s witness, had a religious objection to working on weapons of war.  The employee declined to work on a part, which was to be used on

Unionized Hospital Must Bargain Over Effects of Communicable Disease Policy

In Virginia Mason Hospital, 357 NLRB No. 53, the National Labor Relations Board recently found that a Seattle hospital violated its duty to bargain under the National Labor Relations Act when it implemented a communicable disease policy that required nurses who refused to be immunized against influenza to wear a mask. The Hospital unilaterally adopted its flu

Handbook Policy Supports Employer’s Viewing of Employee’s “Private” E-mail

  Cases involving employers viewing of employee “private” e-mails are popping up more and more frequently.  The latest case from the Georgia Court of Appeals on the subject shows the importance of having a policy that allows the employer to monitor computer usage by employees.             In Sitton v. Print Direction, Inc. (PDI), 2011 Ga. App. LEXIS 849 (September

Garnishments: Corporations in Georgia Need an Attorney to Answer

A corporation served with a summons and garnishment in Georgia must file an Answer in the Court issuing the summons. This Answer must now be signed by an attorney licensed in Georgia. This new rule applies to garnishments in Georgia State and Superior Courts but not in Magistrate Courts where garnishments under $15,000 are often filed. Previously, many corporations handled the

Court Recently Holds that EEOC Lawsuit Not Covered Under EPLI Policy

Now may be a good time to review your Employment Practices Liability Insurance (“EPLI”) Policy to ensure coverage is available when the EEOC comes knocking on your door. In an order entered on September 16, 2011, the U.S. District Court for the Middle District of Tennessee found that based upon the plain language of the

Recent Case Highlights The Importance of Clear Policies When an Employer Monitors Employee Computer Use

   Many employers use software programs to monitor their employee’s use of company computers.  A recent case in Indiana highlights how this can get an employer in trouble if they do so improperly.  In Rene v. G.F. Fishers, Inc., 2001 U.S. Dist. LEXIS 105202, (September 16, 2011), the company installed software to record all keystrokes made on the employee’s

Tyson Fresh Meats Pays $2.25M To Settle Sex Discrimination Case

Tyson Fresh Meats, Inc. has agreed to settle allegations of sex discrimination brought by the Department of Labor’s Office of Federal Contract Compliance Programs.  Under this agreement, Tyson will pay $2.25 million in back wages, interest and benefits to more than 1,650 qualified female job applicants who were rejected for employment at various Tyson facilities.             Tyson

Retaliation will get you in trouble not just under discrimination laws, but under the Sarbanes-Oxley Act as well

On September 14, 2011, Bank of America was ordered by OSHA to reinstate an employee and pay approximately $930,000 dollars in back wages, interest, compensatory damages and attorney fees to an employee that was fired in violation of the whistleblower protection provisions of the Sarbanes-Oxley Act. The employee led internal investigations that revealed widespread wire, mail

Unemployment Discrimination: Is “Unemployed” a Protected Class?

Can job applicants claim they were discriminated against because of a long history of unemployment? No, but the law could be changing. Subtitle D of the proposed Americans Jobs Act incorporates a previously introduced bill that would allow civil discrimination lawsuits to be brought by applicants claiming that he/she was not hired because of a history of


The Atlanta Journal reports that The U.S. Department of Labor fined a Georgia restaurant chain (This Is It! BBQ and Seafood) $104,000 in back pay for improperly classified workers who should have been receiving overtime pay and fined the restaurant $1,900 for allowing minors to work longer each day than allowed by federal regulations. The employer also

Union Organizing: Employers Must Post New Notice of Employee Rights

The National Labor Relations Board has issued a new Final Rule requiring most private employers to post a new Notice in the workplace regarding employee rights. The 11 by 17 inch poster Notice will be provided at no charge by regional NLRB offices or can be downloaded from the Board website. Notices must be posted on November

Lessons Learned from Trial This Week

Although we know it, we are always reminded after a trial of just how much sympathy a jury can conjure up for a Plaintiff who is clearly lying.  We were pleased to receive a defense verdict this week in a sexual harassment case.  The Plaintiff testified to numerous incidents of inappropriate touching by her co-worker/Defendant, and she

City of New Haven Pays $5 Million To Settle Reverse Discrimination Suit

A few months ago we sent out a News Alert about a Supreme Court ruling in favor of a group of white firefighters in a reverse discrimination case.  Interestingly, current Supreme Court Justice Sonia Sotomayor had ruled against the white firefighters when she was a Judge in the Court of Appeals.         Well, the damages part of

Attorneys’ Fees Not Always A Sure Thing in FLSA Pay Outs

Fair Labor Standards Act (“FLSA”) claims are the type of claims that can keep an employer fretting.  Not only can FLSA lawsuits be time intensive and mentally draining, they can also prove to be a financial burden if an employer is unsuccessful, since attorneys’ fees for prevailing plaintiffs are mandatory. 29 USC § 216 (b) (2011).   However, the

Litigation Over Tip Credits: Hospitality Industry Fighting Over Amended Regulations

New regulations issued by the Wage and Hour Division of the Department of Labor (DOL) interpreting the Fair Labor Standards Act (FLSA) regarding tip credits and tip pools recently went into effect on May 5, 2011. However, some industries are not satisfied with these change.  On June 16, 2011, the National Restaurant Association, the Council of State

Social Media and the Fair Credit Reporting Act

Many employers screen job applicants with background searches that include searches for information on social-networking sites like LinkedIn, Facebook and Twitter. If the employer hires another company to conduct such searches, the employer and the third-party vendor conducting the background check may be subject to the Fair Credit Reporting Act. The Federal Trade Commission recently  investigated

Are You Sure He’s a Manager?

Have you given some of your employees the oh-so-important title of “manager” in order to avoid paying them overtime?  Burlington Coat Factory reportedly settled a class action lawsuit brought by its assistant managers this week for $5.7 million.  The employees claimed that the company failed to pay overtime and vacation pay for assistant managers. A designation of


On June 20, 2011 the United States Supreme Court ruled in favor of Wal-Mart in one of the biggest class action lawsuits ever.  In Wal-Mart Stores, Inc. v. Dukes[1], the Supreme Court was faced with a class of about one and a half million plaintiffs, all current and former female employees of Wal-Mart who alleged the company discriminated

Employee Discussions of new DOL Phone App

On May 19, 2011, the U.S. Department of Labor launched its first application for smartphones. Available in English and Spanish, the application helps employees conveniently track regular work hours, break time and any overtime hours for one or more employers. It also provides a calculation of gross pay and overtime pay. DOL promises updated versions that will


Georgia now has a new Illegal Immigration Reform and /Enforcement Act of 2011 that will require private employers with 500 or more employees to begin using E-Verify to check the employment authorization of newly-hired employees by January 1, 2012. Employers with 100 or more employees must begin E-Verify confirmation for new hires by July 1, 2012.  Employers with 11

On May 26, 2011 the United States Supreme Court upheld the Legal Arizona Workers Act of 2007, which requires that every employer, after hiring an employee,  verify the employment eligibility of the employee through e-verify, a federal work authorization program. (Chamber of Commerce of the United States of America v. Whiting).  The 2007 law is not

Is Everyone Disabled Now???

The EEOC issued final regulations interpreting the Americans with Disabilities Act Amendments Act (“ADAAA”) on March 25, 2011, and those regulations took effect this week. The purpose of the amendments was to make it easier for a person to establish that he has a disability under the ADA.  Congress found that persons with many types