BoyarMiller: News & Events

Paycheck Fairness Act (Fair to Who?)

Joseph "Trey" L. Wood, III — 2010-10-10T00:00:00

The Paycheck Fairness Act is back. Previously passed by the House of Representatives, the Act was introduced in the Senate in early 2009 but never came to a vote. Now, Senate Majority Leader Harry Reid (D-NV) has placed the proposed legislation on the legislative agenda.

Why should business owners worry? Well, for one, the bill would make employers liable for unlimited punitive damages under the Fair Labor Standards Act for even unintentional pay disparities, and eliminate current limits for back pay as well as for compensatory damages. It would also make class actions against employers much easier by eliminating...

All Atwitter Over Twitter (and other Social Networking Concerns)

Joseph "Trey" L. Wood, III — 2010-10-14T00:00:00

As we launch BoyarMiller's latest blog, Employment Law Matters, we address the issue of whether blogs, or other social media outlets, used by your employees are a good thing or a bad thing. Certainly, when it comes to marketing a company and/or its products, employers want their employees to spread the word. But employees doing so via blogs, social-networking sites and/or Twitter may pose potential liability concerns...

Failure to Post May Lead to Lost Defense

Joseph "Trey" L. Wood, III — 2010-10-13T00:00:00

The Civil Rights Act of 1964 requires employers to post a notice describing the law's provisions in an accessible format. The posting must be conspicuously posted in the same place where other employee notices are customarily kept. The notice must also be prepared by or approved by the EEOC.

Failing to post such a notice may be mean that employers could lose a defense that untimely claims should fail. In a recent New York federal district court case, an employee of a hotel-casino in Atlantic City filed a complaint alleging that she had been discriminated against...

FMLA Notices: Where and How?

Joseph "Trey" L. Wood, III — 2010-10-09T00:00:00

Under the FMLA regulations, employers are required to post the Department of Labor's "General Notice" poster and publish it to employees. The poster, also known as WH Publication 1420, is available on the DOL's website. Employers covered by the FMLA must post a copy of the poster in each location where it has any employees, even if there are no FMLA-eligible employees at that location.

Classifying Outside Sales Staff: Do They Actually Make Sales?

Matthew S. Veech — 2010-10-11T00:00:00

Employers that classify its outside sales people as exempt should make sure that those employees actually make sales.

In In re Novartis Wage and Hour Litigation, the U.S. Court of Appeals for the Second Circuit found that pharmaceutical sales representatives do not meet the outside sales exemption because the representatives' duties are not actually making sales but rather only promoting a product in an effort to convince doctors to prescribe certain pharmaceuticals. Additionally, the Second Circuit found...

New I-9 Rules to Follow for Puerto Ricans after October 30, 2010

Joseph "Trey" L. Wood, III — 2010-10-14T00:00:00

The U.S. Citizenship and Immigration service just issued new rules pertaining to the acceptance of birth certificates from Puerto Rican's for I-9 purposes. The relevant parts of the news release provide as follows:

WASHINGTON - On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico because of a new Puerto Rico birth certificate law. After Oct. 30, 2010, all certified copies of birth certificates issued prior to July 1, 2010, will become invalid. This new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates.

How Bullying Bosses Could Bring Liability

Joseph "Trey" L. Wood, III — 2010-10-19T00:00:00

Did you know that October 17-23 is Freedom from Workplace Bullies Week? While many still associate bullying with overgrown kids taking lunch money on the school playground, the issue of bullying in the workplace is also serious and prevalent. More than a third of American workers have been bullied at work, and nearly half —- 49 percent — say they have been affected by bullying, either through experiencing it or witnessing it, according to a recent survey by The Workplace Bullying Institute.

Workplace bullying damages morale, can lead to workers' compensation claims, hampers productivity and can force high employee turnover. While employers have not often been taken to court for bullying behavior, since it is generally not illegal, that could change soon...

Remember to Let Your Employees Vote

Joseph "Trey" L. Wood, III — 2010-10-21T00:00:00

With elections just around the corner, do not forget that your employees have a right to vote. The Texas Election Code provides that employees must be given time to vote without any penalty if polls are not open for 2 consecutive hours outside the employee's work day. Employers who refuse to allow employees to vote under such circumstances, or who even threaten an employee with any type of penalty for attending polls on election day to vote commit a Class C misdemeanor.

ADA Tool Kit

Joseph "Trey" L. Wood, III — 2010-10-26T00:00:00

Given the (over) breadth of the Americans with Disabilities Act Amendment Act (ADAAA), almost any given condition may be found to be a covered disability. The emphasis for employers now shifts to an inquiry as to whether the employee is a "qualified individual with a disability." In other words, can the employee perform the essential functions of the job with or without reasonable accommodation.

The Office of Disability Employment Policy (ODEP), which is part of the Department of Labor, has developed a "tool kit" to try and help employers (and employees) with ways to understand how to return employees back to work...

Wait Before You Terminate: FMLA Lessons

Joseph "Trey" L. Wood, III — 2010-11-02T00:00:00

One of your employees calls in sick on November 6 and 7 saying she needed to care for her sick son. On November 8 and 9 she calls in saying that now she is sick and has an appointment with a doctor. She finally forwards to you a doctor's release indicating that she will return to work on November 14. That day comes and goes and the employee never shows up. On November 20 you call the employee to let her know that her job would be in jeopardy if she could not produce documents that confirmed her need to be off of work. She tells you that she sent you the wrong medical certification...

Top 10 Mistakes Made by Employers

Joseph "Trey" L. Wood, III — 2010-11-05T00:00:00

Frequently, a disgruntled employee will talk to a plaintiff lawyer about perceived harassment or discrimination in the workplace. The plaintiff lawyer may find that the complaint that the employee comes calling about is much ado about nothing. However, crafty plaintiff lawyers are always on the lookout for different ways to trap an unwary employer and, by questioning the employee in depth, they may uncover violations that the employee had no idea was occurring.

Here are some of the top mistakes made by employers that could lead to costly awards to employees or ex-employees...

How the Midterm Elections Gave Hope to Employers

Joseph "Trey" L. Wood, III — 2010-11-12T00:00:00

It was just two years ago and virtually all management-side labor and employment attorneys, including this author, were forecasting gloom and doom for employers across the country. President Obama had just been elected and he had promised the passage of several employee-friendly laws. Among them was the Employee Free Choice Act (EFCA), which I was certain would be passed early in President's administration. Now, it is all but dead. What happened? Democracy seems to have intervened.

The Republicans, and even some Democrats, questioned EFCA from the beginning. The biggest problem with the bill was the fact that it did not allow for secret ballot elections....

Final Regulations for GINA Released

Joseph "Trey" L. Wood, III — 2010-11-14T00:00:00

At long last, the EEOC has published final regulations that interpret and implement the non-discrimination provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA). The regulations may be found at http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008.

Of particular interest to employers is disclaimer language that the EEOC has drafted that all employers should insert into any of their medical exam and medical inquiry forms. Such forms are frequently used for post-offer medical exams, FMLA medical certifications and ADA medical information requests. The specific language offered by the EEOC reads as follows...

The NLRB's After Us and We're Not Even Unionized!

Joseph "Trey" L. Wood, III — 2010-11-17T00:00:00

Many employers think that the National Labor Relations Board is the government's agency responsible for dealing with union issues. While that is true, the NLRB is actually charged with protecting employee rights whether the employer is union or non-union. All employees and employers are covered by the National Labor Relations Act. Section 7 of the NLRA protects employees' "concerted, protected activity". Essentially, employees are allowed to communicate with co-workers about the terms and conditions of employment. An employer's attempt to hinder or interfere with those rights is a violation of the NLRA which could lead to an unfair labor practice charge being filed on the employees' behalf by the NLRB.

As an example, many employers believe that information about their employees' rate of pay is a private matter between the employer and its employees. Accordingly, the employer may have a policy in place...

Paycheck Fairness Act is Dead - For Now

Joseph "Trey" L. Wood, III — 2010-11-18T00:00:00

Yesterday, November 17, the Senate voted 58-41 against proceeding to a floor debate on the Paycheck Fairness Act. That means that the legislation, which had the support of President Obama and was previously passed by the House of Representatives, is dead. As you may recall from my October 10 posting (Paycheck Fairness Act - Fair to Who?), the Act would have made employers liable for unlimited punitive damages under the Fair Labor Standards Act for even unintentional pay disparities, and would have eliminated current limits for back pay as well as for compensatory damages. It would also have made class actions against employers much easier by...

Protecting Your Trade Secrets

Joseph "Trey" L. Wood, III — 2010-11-29T00:00:00

George Strait once wisely stated, "You've got to have an ace in the hole, a little secret that nobody knows." No one is more aware of this fact than business owners and managers. In the cutthroat competition that exists, the most valuable possession business owners and managers own is not reflected on their books, but in the insight they have developed into how to successfully operate their businesses. This is what sets successful businesses apart from the competition. Unfortunately, this insight, or "ace in the hole" must often be shared with new employees or independent contractors because a manager or business owner clearly cannot run the business by him or herself. This often causes managers to face difficult questions: who can be trusted with this information? What information is worth protecting? Who owns the rights to the information, or "ace in the hole?"

Fortunately, the law recognizes the rights of business owners and managers to protect their valuable information and knowledge. Essentially, there are two ways managers can protect this information...

Mandatory Health Risk Assessments Violate the ADA

Joseph "Trey" L. Wood, III — 2010-12-02T00:00:00

An Equal Employment Opportunity Commission (EEOC) Informal Discussion Letter reveals the EEOC's opinion that health risk assessments (HRA) are invalid as long as they are mandatory. In other words, an employer could be sued under the Americans with Disabilities Act (ADA) for refusing health care coverage to an individual because he or she failed to participate in an HRA.

An HRA is a type of medical examination to determine an individual's overall level of wellness. It includes a questionnaire asking about lifestyle, diet, exercise choices and biometrics testing cholesterol and blood pressure. After completing the assessment, the individual is given a score...

Right To Monitor May Result In Duty To Report

Joseph "Trey" L. Wood, III — 2010-12-07T00:00:00

A New Jersey Court of Appeals has held that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee's activities and take sufficient action to stop the unauthorized activity. If the employer does not take such action, it may be liable to third parties who are damaged as a result of the employee's conduct.¹

Case Background
XYC Corporation employed approximately 250 employees at its headquarters where the employee in question was an accountant. The employee's work space consisted of a small cubicle which also contained the cubicle of another accountant. The cubicle had no doors and opened into a hallway. The Company possessed software that would have permitted it to monitor...

Department of Labor Now In the Attorney Referral Business

Joseph "Trey" L. Wood, III — 2010-12-14T00:00:00

As most of you know, overtime wage claims and FMLA claims have sky-rocketed. The Department of Labor, which is responsible for handling these types of matters, has now announced that if they are too busy to handle one of these claims, a new federal program will help make sure the employee is referred to a lawyer who is qualified to pursue the complaint on behalf of the employee. The referral program is part of the Obama administration's Access to Justice Initiative. The following is a description of the program from the White House press release...

Death of the Employee Free Choice Act No Deterrent to National Labor Relations Board

Joseph "Trey" L. Wood, III — 2010-12-22T00:00:00

While the last election may have sounded the death knell of the proposed Employee Free Choice Act (EFCA), it does not mean that the current administration is rolling over on the issue of organized labor. In a startling new maneuver, the National Labor Relations Board (NLRB) has issued a proposed regulation that would require most employers to post a notice advising employees of their rights under the National Labor Relations Act (NLRA), how an employee can file an unfair labor practice complaint, the right of employees to collectively bargain...

EEOC Has Banner Year

Joseph "Trey" L. Wood, III — 2010-12-23T00:00:00

The EEOC has reported that for FY 2010, which ended September 30, a record 99,922 charges of discrimination were filed. That is the largest number in the 45-year history of the Commission. The agency also recovered more than $319 million in monetary benefits for individuals...

New Year's Resolutions

Joseph "Trey" L. Wood, III — 2011-01-05T00:00:00

New Year's Resolutions - we make them every year: lose weight, exercise more, spend more quality time with the family, etc., etc. But have you ever decided to resolve to create a work environment that fosters greater employee productivity and loyalty, and reduces potential employment liability? Why not try it this year?

Sometimes, employers feel that the solution to any employee problem is to apply a monetary poultice. With the economy the way it has been lately, this is increasingly difficult and is rarely the solution. While employee compensation is important, a study was conducted...

Return to Work "Without Restriction"

Joseph "Trey" L. Wood, III — 2011-01-21T00:00:00

Many employers have policies that state that employees who wish to return to work following an illness or injury must be able to do so "without restriction" or for "full duty." It now appears that those types of policies are seen as red flags by the Equal Employment Opportunity Commission (EEOC) when employees are terminated for not being able to meet these requirements. Earlier this month the EEOC announced a $3.2 million settlement in a lawsuit against Jewel-Osco, alleging that the grocery chain fired disabled employees who could not return to work without restriction rather than seeking to find them reasonable accommodations.

While the company has denied any wrongdoing and has indicated that it chose to settle the case to avoid litigation costs and put the matter behind them to focus on current business initiatives, it is clear...

Supreme's Give Nod to Third-Party Retaliation

Joseph "Trey" L. Wood, III — 2011-01-26T00:00:00

In a rare unanimous decision, the United States Supreme Court has ruled that Title VII of the Civil Rights Act of 1964 covers retaliation claims filed by third-parties who are considered to be "aggrieved persons" because they are "within the zone of interests sought to be protected by Title VII." Thompson v. North American Stainless, LP, No. 09-291, U.S. Supreme Court (January 24, 2011).

Background: Eric Thompson and his fiancé, Miriam Regalado, were employees of North American Stainless, LP. Three weeks after Regalado filed a sex discrimination charge against the employer...

Workplace Romance: Avoid Problems-Send in the Love Contract

Joseph "Trey" L. Wood, III — 2011-02-07T00:00:00

In honor of Valentine's Day, when love is "in the air," it seems fitting to address an issue that affects employers every day: workplace romances.

At some point, an office or workplace romance will flourish at your place of business, if it has not already. It seems only logical since people spend large amounts of time together at work (most employees spend at least 160 hours per month at work), that relationships may develop outside the scope of normal business duties. The question then becomes, as an employer, how should a company handle these types of relationships?

First, as a rule of thumb, employees at the managerial and/or supervisor level should avoid office romances with subordinates. As with any romantic relationship, the odds that it will sour are high, and additionally, your company risks serious exposure...

Update: Employers’ Regulation of Employees’ Social Media Use

Joseph "Trey" L. Wood, III — 2011-03-01T00:00:00

Our November 17, 2010 blog entry titled "NLRB's After Us and We're Not Even Unionized" indicated:

In a recent, somewhat frightening development, the NLRB has recently filed a complaint alleging that American Medical Response of Connecticut, Inc. (AMR) violated Section 7 of the act by terminating an employee for posting negative comments about her supervisor on her Facebook page. AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off-duty and using a personal computer. Apparently, the policy did not include a disclaimer that the policy would not be construed or applied in a manner that interferes with employees' rights under the NLRA. The Board's complaint is also...

Supreme Court Ruling Bolsters Need For Thorough Investigations and Training

Joseph "Trey" L. Wood, III — 2011-03-07T00:00:00

Last week the Supreme Court held that an employer may be liable for the discriminatory motives of a supervisor, even when the individual making the employment decision had the purest of motives. The Court's ruling will trigger human resources departments everywhere to reconsider employment-related decisions where supervisors influence or even provide input into the ultimate decision.

The Court's decision in Staub v. Proctor Hospital involved what is known as the "cat's paw" theory in which many courts have found...

EEOC's ADA Amendment Act Regulations Finalized

Joseph "Trey" L. Wood, III — 2011-03-29T00:00:00

On Friday, March 25, 2011, the EEOC published its finalized regulations governing the Americans with Disabilities Act Amendment Act (ADAAA). The final regulations may be viewed at www.ofr.gov. Briefly, the highlights of the new regulations are as follows:

"Substantially Limits": The new regulations significantly relax the definition of what impairments "substantially limit" major life activities. The Amendments Act also clearly stated that the Supreme Court's interpretation of the term "substantially limits" as meaning "severely restricts" was too high of a standard and the ADAAA intended to lower that standard. While the Act itself did not offer guidance as to where that standard should be...

The Hazard of Dukes

Chris Hanslik — 2011-04-06T00:00:00

On March 29 the United States Supreme Court heard oral arguments in Dukes v. Wal-Mart Stores, Inc. The class action lawsuit involves, potentially, 1.5 million female Wal-Mart employees and ex-employees claiming gender discrimination in terms of pay and promotions. The potential liability Wal-Mart faces is in the billions of dollars. However, the case is more significant for class action procedural issues than for any substantive employment-related issues.

The lawsuit has been certified as a class action under two different procedural rules. First, the suit was certified under Federal Rule of Civil Procedure 23(b), which relates only to class action claims for injunctive or declaratory relief. Wal-Mart has argued that...

co-authored by Joseph "Trey" L. Wood, III

Yet Another Reason for Employee Handbook Audits

Joseph "Trey" L. Wood, III — 2011-04-14T00:00:00

While union membership has declined steadily over the past several decades, it is clear that the current administration is an advocate for organized labor. President Obama has appointed two of the most overtly pro-union members to the National Labor Relations Board (NLRB) that we have seen in years. Craig Becker, one of Obama's early appointees who was rejected by the Senate...

"No Match" Letters Return

Joseph "Trey" L. Wood, III — 2011-04-26T00:00:00

After a three-year hiatus, the Social Security Administration (SSA) recently announced that it will again begin sending "No Match" letters to employers. These letters are used to advise employers that there is a discrepancy in the records of the SSA between the name of an employee and the Social Security number listed for that employee on the payroll taxes submitted by the employer. The SSA suspended sending out these letters for the past three years...

Supremes Rule: Class Action Arbitration Waivers Valid

Joseph "Trey" L. Wood, III — 2011-04-28T00:00:00

In a bit of good news for employers, the United States Supreme Court on April 27, 2011 struck down a state law which prohibited arbitration agreement provisions waiving the right to participate in class action litigation. In AT&T Mobility LLC v. Concepcion, the Supreme Court considered the issue of whether parties can preclude class actions...

OSHA Recordkeeping Site For Employers

Joseph "Trey" L. Wood, III — 2011-05-20T00:00:00

You may have heard, or read in my last blog entry, that the Department of Labor (DOL) has come out with an "app" to assist employees in keeping track of their time for wage and overtime matters.

Not to appear too one-sided, the DOL just came out with a website to assist employers with recordkeeping for OSHA matters. This directly from the DOL's press release...

Supremes OK Legal Arizona Workers Act

Joseph "Trey" L. Wood, III — 2011-06-01T00:00:00

The Legal Arizona Workers Act (LAWA) requires the Attorney General or County Attorney to investigate all complaints made by anyone against an employer relating to the employment of unauthorized aliens. The U.S. Immigration and Customs Enforcement (ICE) agency and local enforcement will be informed of valid complaints, and the County Attorneys may file charges against the employer. The Act also provides for a progressive penalty system that...

Employers Lose Fight Against Concealed Carry License Holder Employees in Texas

Joseph "Trey" L. Wood, III — 2011-06-08T00:00:00

On June 2, the Texas Legislature passed S.B. 321, which prohibits employers from denying employees with concealed carry handgun licenses the ability to carry a firearm in a locked, privately owned automobile in a parking lot, garage or parking area that the employer provides to employees. Employers may still prohibit the possession...

Dukes Not So Hazardous After All

Joseph "Trey" L. Wood, III — 2011-06-24T00:00:00

As an update to our blog posting on April 6, the United States Supreme Court has ruled that a district court improperly certified a nationwide class of female employees of Wal-Mart who were claiming sex discrimination in the company's pay and promotion practices. In Dukes v. Wal-Mart, the Court unanimously ruled that...

NLRB Again Flex’s Its Muscle

Joseph "Trey" L. Wood, III — 2011-06-25T00:00:00

While the passage of the Employee Free Choice Act is seemingly dead, the National Labor Relations Board (NLRB) is still seeking to implement parts of the Act through administrative fiat. On June 21, the NLRB proposed changes to its existing rules governing union elections. If implemented, the new rules would significantly restrict an employer's ability to successfully stage its own...

Non-Compete Agreements in Texas More Enforceable than Ever

Joseph "Trey" L. Wood, III — 2011-07-05T00:00:00

On June 24, the Texas Supreme Court made it easier for employers to enforce non-compete agreements with employees by holding that stock options can serve as consideration sufficient to support the agreement. Before this ruling it was generally accepted that only an employer's providing...

Social Media Harassment?

Joseph "Trey" L. Wood, III — 2011-07-18T00:00:00

The explosion of social media is no longer a headline grabbing phenomenon. In addition to Facebook, MySpace, Twitter and a plethora of other social websites, individuals have taken to creating and maintaining their own personal blogs. While most employers recognize that they have a duty to maintain a workplace atmosphere free of illegal harassment, what about the situation where one of your company's employees, on his own time and away from the workplace, starts to make fun of another employee's physical deformity...

Another Reason to Classify Your Employees/Independent Contractors Correctly

Joseph "Trey" L. Wood, III — 2011-07-25T00:00:00

The essence of any lawsuit seeking an injunction to enforce a non-competition agreement is breach of contract: The company seeking to enforce the non-compete is claiming that the violating party breached the non-compete. A defense often raised in these matters is that the company acted with "unclean hands," i.e., that the company breached the agreement too, so the non-compete should, likewise, be unenforceable. In one recent case, this very argument was used...

Religious Discrimination Claims Rise

Joseph "Trey" L. Wood, III — 2011-08-15T00:00:00

Several months after the 9/11 attacks, Alamo Car Rental fired one of its customer service representatives, a Muslim woman who refused to remove her head scarf during Islam's holy month of Ramadan. The U.S. Equal Employment Opportunity Commission (EEOC) in Phoenix filed a lawsuit claiming that Alamo committed backlash discrimination based on religion. Last year, a jury awarded more than $287,000 to the woman.

In this case, the judge decided that Alamo's religious discrimination against the woman was so clear cut that...

You're Fired! Insubordination Still Legitimate Reason for Terminations

Joseph "Trey" L. Wood, III — 2011-08-22T00:00:00

You hire a new employee with great hopes of a long lasting and productive relationship. However, after a very short while, co-workers begin to complain about your new hire and her attitude towards the staff. When you attempt to counsel the employee over the complained of conduct, she raises her voice, accuses you and others within the office of being unfair and refuses to accept any responsibility...

All Employers Now Required to Post Notice of Employees’ Unionization Rights

Joseph "Trey" L. Wood, III — 2011-08-26T00:00:00

On August 25, the National Labor Relations Board (NLRB) issued a final rule that requires all employers subject to the National Labor Relations Act to notify employees of their rights under the National Labor Relations Act (NLRA) by November 14, 2011.¹ The notice will be required to be posted where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be...

Employers May Have to Add to the List of Those Protected from Discrimination: The Unemployed

Joseph "Trey" L. Wood, III — 2011-08-29T00:00:00

Most employers are aware that they may not discriminate against job applicants on the basis of their race, sex, national origin, religion, disability, veteran status, etc, etc. Adding to that already long list, a recent bill introduced into the U.S. House of Representatives and Senate would make it illegal for an employer to: (1) refuse to consider for employment or refuse to offer employment to an individual because of the individual's status as unemployed; (2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for any job that includes any provision stating or indicating that an individual's status as unemployed disqualifies the individual...

Parental Bereavement Act May Amend FMLA

Joseph "Trey" L. Wood, III — 2011-08-28T00:00:00

Kelly Farley faced one of the most tragic events any parent could face: The death of his daughter. In order to cope with the grief stemming from such a loss, he applied for Family Medical Leave Act (FMLA) leave only to find that such an event is not covered by the Act. Instead, he requested FMLA leave to care for his grieving wife, who was suffering from depression in the aftermath of the family's loss. Farley later went on to help found The Grieving Dads Project, a grass roots initiative...

EEOC Scrutinizes Criminal Background Checks

Chris Hanslik — 2011-08-30T00:00:00

In the past few years, the Equal Employment Opportunity Commission (EEOC) has renewed its focus on the hiring process, including Title VII protections for ex-convicts. For years, the EEOC's guidelines have disapproved of an employer's absolute ban on hiring anyone with a criminal conviction. Rather, they direct that if an employer's conviction-based screening policy causes a disparate impact against a protected class of individuals, the employer must show that it...

Employee Rights Poster Now Available

Joseph "Trey" L. Wood, III — 2011-09-26T00:00:00

As an update to our posting of August 26, the Employee Rights poster that is required of virtually all employers effective November 14, is now available on the NLRB's website at https://www.nlrb.gov/poster.

Covered by EPLI? Better Think Again

Joseph "Trey" L. Wood, III — 2011-09-30T00:00:00

Many employers purchase an insurance product known as Employers Practices Liability Insurance (EPLI) for coverage in the event they are sued for different types of employment claims such as harassment, discrimination and retaliation. One such employer, Cracker Barrel, had an EPLI policy with Cincinnati Insurance Company. Cracker Barrel was sued by the EEOC for sexual and racial harassment, racial discrimination, retaliation and discharge. Ultimately, the suit was settled for...

NLRB Postpones Posting Requirement

Joseph "Trey" L. Wood, III — 2011-10-06T00:00:00

As an update to our posts on August 26 and September 26, the National Labor Relations Board (NLRB) has announced that it has postponed the implementation date of its new posting requirement to January 31, 2012. As you may recall, on August 25 the NLRB issued a final rule that requires all employers subject to the National Labor Relations Act to notify employees of...

The Three C’s of Discipline and Termination

Joseph "Trey" L. Wood, III — 2011-10-19T00:00:00

I always preach that when employers are considering disciplining or terminating an employee, they best way to stay out of trouble is to should follow the three C's: Consistency, Communication and Common Sense.

Consistency
Employers must remain consistent in the way they enforce company policies and rules of conduct. Remaining consistent in making decisions promotes credibility...

How "Alternate Employer Endorsement" Can Help If You Hire Temporary Workers

Edgar Saldivar — 2011-10-23T00:00:00

Businesses often depend on staffing companies or "temp agencies" to supply their workers. The contract between the staffing company and the client business typically has a provision for workers' compensation insurance coverage. Depending on the nature of the services provided by the staffing company, the client business may or may not qualify by statute for workers' compensation insurance coverage through the policy held by the staffing company. Nevertheless, recent case law suggests that a little-known endorsement...

Giving Employees a Lift: Must Employers Accommodate an Employee Who Commutes?

Joseph "Trey" L. Wood, III — 2011-10-27T00:00:00

Employers are typically aware of the fact that they must reasonably accommodate employees with disabilities while at work, but does that mean that they have an obligation to help employees get to work? That issue has been coming up a lot recently and the courts that have examined the issue have given differing opinions on the subject.

Recently, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) found that employers may have such an obligation. In the case that they considered, the employee...

Excuses, Excuses, Excuses...

Joseph "Trey" L. Wood, III — 2011-10-28T00:00:00

A nationwide study conducted by Harris Interactive from August 16 to September 8, 2011, and reported in Career Builder, reported some pretty zany excuses for why employees miss work. The study included more than 2,600 employers and 4,300 workers. Here are some of the unique reasons employees called out sick...

Antiquated Computer Employee Exemption May Get An Update

Joseph "Trey" L. Wood, III — 2011-10-31T00:00:00

When it comes to technology, what was invented last week is seemingly an antique today. The same can be said for the Fair Labor Standards Act's test for employees who are exempt under the Computer Employee Exemption. Section 13(a)(17) of the FLSA has set out that for an employee to be exempt under that test, and not be entitled to overtime, the employee's primary duty must consist of...

Congress Again Mulls Employee/Contractor Classification

Joseph "Trey" L. Wood, III — 2011-11-04T00:00:00

Introduced into Congress yet again is the new and improved Employee Misclassification Prevention Act. The bill is intended to punish employers who misclassify employees as independent contractors. The proposed legislation would impose the following requirements on employers...

Say "Cheese" — You’re fired!

Joseph "Trey" L. Wood, III — 2011-11-16T00:00:00

In another example of why it is important for employers to consistently enforce company policy, the Fourth Circuit Court of Appeals recently enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act (NLRA) when it allegedly fired an employee for photographing other employees at work. The Court agreed with the Board that the employee was terminated for...

USERRA Expanded to Include Harassment Claims

Joseph "Trey" L. Wood, III — 2011-11-29T00:00:00

A new law signed by President Obama on November 21 will make it easier for individuals to sue employers for harassment on the basis of their military status. While the thrust of the Veterans Opportunity to Work to Hire Heroes Act is to reduce unemployment rates for veterans of the Iraq and Afghanistan conflicts, it also amends the Uniformed Services Employment and Reemployment Rights Act (USERRA) to specifically recognize claim...

25 More Charges Filed in 2011 than 2010

Joseph "Trey" L. Wood, III — 2011-12-16T00:00:00

The Equal Employment Opportunity Commission (EEOC) reported that there were a total of 25 more charges of discrimination filed in the fiscal year 2011 (October 1, 2010 through September 30, 2011) than in 2010. While that doesn't sound like much, the total number of charges filed...

2012 Limits on Transportation Benefits Issued by IRS

Joseph "Trey" L. Wood, III — 2011-12-18T00:00:00

The Internal Revenue Service (IRS) has issued a new set of limits that are designed to assist employees with their daily commutes.

Parking
The monthly limit on the amount of parking benefits that can be excluded from employees' income for tax purposes will go up...

NLRB Finalizes Rule for Quicker Elections

Joseph "Trey" L. Wood, III — 2011-12-22T00:00:00

In our June 25 posting titled "NLRB Again Flex's Its Muscle," we made you aware of the NLRB's proposed changes to its rules governing union elections. The proposed rules would restrict an employer's ability to successfully stage its own campaign in opposition to a union's organizing efforts. As expected, on December 21 the NLRB published its final rule...

New Year, New Resolutions

Joseph "Trey" L. Wood, III — 2012-01-03T00:00:00

It is once again that time of the year when we begin to look forward to a new year and new beginnings: Out with the old, in with the new. Something that is not so new is the federal government's increased scrutiny of the way employers treat their employees. From harassment and discrimination to wages and immigration, various government agencies have stepped up their enforcement efforts...

Commercial Motor Vehicle Drivers Banned from Cell Phone Use

Joseph "Trey" L. Wood, III — 2012-01-09T00:00:00

The Federal Motor Carrier Safety Administration's final rule prohibiting Commercial Motor Vehicle (CMV) drivers from using hand-held cell phones while operating their vehicles went into effect on January 3, 2012.

Through the Pipeline and Hazardous Materials Safety Administration (PHSA), drivers hauling hazardous materials within a state are...

Supreme's Back Church's Employment Decision

Joseph "Trey" L. Wood, III — 2012-01-16T00:00:00

On January 11, 2012, the United States Supreme Court ruled that a church that makes employment-related decisions with respect to its "ministers" is free from any employment discrimination suits brought by the affected employee. In a rare unanimous decision, the Court held...

Class Action Waivers No Longer Valid In Arbitration Agreements?

Joseph "Trey" L. Wood, III — 2012-01-19T00:00:00

Earlier this month the National Labor Relations Board (NLRB) found that mandatory arbitration agreements which require employees to waive the right to bring class or collective actions are in violation of the National Labor Relations Act (NLRA).¹ This ruling means that any arbitration agreements which contain class action waivers...