Sports, Beer, and Work
We laugh about employee engagement and productivity on the day after the Super Bowl; we joke about productivity on Black Friday; welcome today to a similar situation—when March Madness begins and drinking is abound. Should we celebrate the combination of the two dates, with the ever-optimistic view that now...
Take Your Child to Work Day (or Year) and the White Sox
Father and Son and Baseball is like . . . well it's actually not like anything else, it is America. Have you seen #FamilyFirst and the publicity that has accompanied Adam LaRoche's decision to leave the White Sox? If not, you can catch up here . How, you're asking...
More Starch in the White Collar Exemption
Previously, we published a blog post on the DOL's 2015 proposal to more than double the threshold under which salaried exempt employees are eligible for overtime payment. The proposal raises the salary threshold from $23,660 per year to $50,440. The Department of Labor received almost 300,000 comments on the...
Let’s Talk about Sex(ual Orientation) Lawsuits under Federal Law
The last few weeks have been filled with filings and decisions in federal courts across the country regarding sexual orientation as a basis for a Title VII lawsuit. On March 1, 2016, the United States Equal Employment Opportunity Commission ("EEOC") filed its first sexual orientation discrimination claims in Pittsburg...
Mandated Paid Sick Leave Will Start Flowing in the Sugar Maple State in 2017
Yesterday, March 9, 2016, Vermont Governor Peter Shumlin signed into law a bill that will require paid sick leave to be offered to an estimated 60,000 workers throughout the state. The Governor noted that the "law will provide dignity for employees, a more productive workforce for employers, and a...
While There WAS No "I" in Defendant, There Is Now: New Hampshire Supreme Court Finds Individual Liability in State Anti-Discrimination and Anti-Retaliation Statutes
Earlier this week the New Hampshire Supreme Court issued a decision in EEOC v. Fred Fuller Oil Company, Inc. , finding that New Hampshire's anti-discrimination statute imposes individual employee liability for aiding and abetting in discrimination in the workplace and that New Hampshire's anti-retaliation statute similarly imposes individual employee...
Can the Gravity of the Employer’s Reasons for Termination Outweigh the Employee’s Evidence of Retaliation?
As employment lawyers we have seen some pretty awful examples of behavior in the workplace. If we are involved, we are usually helping our clients weigh the risk of litigation against the need to remove an employee from the company. When we consult with people we usually ask about...
I'll Take a Double - Or The Danger of the Double-Recovery Provision under Medicare Secondary Payer Statute
Many of you are aware of the Medicare Secondary Payer Act, or MSP. It was enacted to stop cost-shifting from a third party who is responsible for payment of medical costs onto Medicare. We see this issue arise in workers' compensation when an employer/insurer contests responsibility for medical treatment...
Dave and Busted? - Are You Cutting Hours to Avoid the ACA Employer Mandate?
Since its passing in 2010 the clarion call of Obamacare opponents was that the employer mandate would incentivize employers to cut hours so as to reduce the number of "full time" employees for whom they would be required to provide health insurance. In 2015 (the first year of the...
Seaman Experience a Texas-Sized Controversy Under the FLSA
Hey Tex, when is a sailor not a sailor? According to the Fifth Circuit, when the sailor's primary duty is unloading cargo. When we New Englanders think of Texas, we think of open prairies, Cadillacs with horns, and oil fields. But for the last two years there has been...
With a Little Help from my Friends: 8th Circuit Assumes Without Deciding that Associational Bias Claims Exist Under Title VII
Update regarding an issue we've previously blogged about . The Eighth Circuit assumed without deciding that individuals can sue for retaliation or discrimination under Title VII based on their association with a member of a protected class. The Second, Fifth, Sixth and Eleventh Circuits have explicitly ruled the statute...
Roses are Red, Violets are Blue, Greeting Card Giant Settles Class Action Suit
Last week American Greeting Corporation settled a wage and hour class action under the FLSA and California state wage and hour laws in Smith v. American Greetings Corp. , No. 3:14cv02577 (N.D. Cal. Jan. 29, 2016). Additionally Plaintiffs brought claims under the California Private Attorneys General Act which permits...
Yahoo Announces New Layoffs, Gets Sued for Old Ones
Interesting employment law angle to Yahoo's announcement yesterday that it would explore "strategic alternatives," including a possible sale of some of its assets, and lay off about 15% of its 11,000 employees. The day before the announcement, Gregory Anderson, an editor fired by Yahoo in November 2014, filed a...
In Electing to Change 57-Year-Old Precedent, the NLRB Further Shortens the Time Employers Have to Respond to a Union Campaign
On January 29, 2016 the NLRB issued a decision in which it changed (under the guise of clarifying) one of the election rules for mail-ballot elections. See Guardsmark, LLC and Int'l Union, Security, Police, and Fire Prof'ls of Am. , 363 NLRB No. 103 (2016). At issue was at...
EEOC Builds Off of "Rosebud" Momentum Seeking Extensive Pay Data
Today the EEOC announced proposed changes to the EEO-1 form that will affect federal contractors and all employers who employ over 100 individuals. The proposal (available here ) would require employers to provide wage data for employees falling into 10 job categories with the requirement that employers identify gender...
Teamsters: Keep MillerCoors Brewery Open!
Interesting intersection between the worlds of beer and labor law as Teamsters General President James P. Hoffa sent a letter to executives at SABMiller, Molson Coors and MillerCoors, urging them not to close the MillerCoors brewery in Eden, North Carolina. You can read the letter here , however, Hoffa...
Supreme Court to Review “Service Advisors” Entitlement to Overtime
On Friday, the United States Supreme Court granted certiorari in a case where it will determine "whether 'service advisors' at car dealerships are exempt . . . from the FLSA's overtime pay requirements." Up for review is the Ninth Circuit's decision in Encino Motorcars, LLC v. Navarro , No...
Third Circuit Holds Bankruptcy Rules “Trump” the NLRA in Case Involving the Trump Taj Mahal Casino
In September 2014, amid "deteriorating financial health" and a "desperate" financial situation, Atlantic City, New Jersey's Trump Taj Mahal filed for Chapter 11 bankruptcy protection. Around that same time, the Taj Mahal was attempting to bargain with UNITE HERE Local 54 (the "Union") to renegotiate the parties' collective bargaining...
Is This Mic On?: NLRB Finds Whole Foods Policy Has Chilling Effect
Recently, the National Labor Relations Board reviewed upscale grocer Whole Foods' policy within its General Information Guide ("GIG") which banned employees' from recording in the workplace without prior management approval. Specifically the policy provided: In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and...
Tractor Supply Co. Plowing New Terrain in Medical Marijuana Law
Last week, the United States District Court for the District of New Mexico issued a memorandum and order granting Tractor Supply Company's Motion to Dismiss in Garcia v. Tractor Supply Co . The Plaintiff, Rojerio Garcia, suffers from HIV/AIDS and was using medical marijuana under the Lynn and Erin...
Supreme Court Hears Oral Argument on Whether Agency Fees Paid to Public Sector Unions Constitute Compelled Speech in Violation of the First Amendment
On Monday, the Supreme Court heard oral argument in a case that could significantly inhibit public unions' abilities to collect dues from non-members. Since the Supreme Court's decision in Abood v. Detroit Board of Education in 1977, the courts have distinguished between fees charged by unions for representing public...
EEOC to 11th Circuit: Title VII Prohibits Sexual Orientation Discrimination
Well, this just got interesting. Tracking a position it took last summer in an agency decision involving a federal employee , the EEOC recently filed an amicus brief with the 11th Circuit Court of Appeals arguing that Title VII prohibits discrimination based on sexual orientation. In its brief...
Employers Should Use Fall Protection When Maneuvering Around Eleventh Circuit’s OSHA Supervisor Liability Standard
Last week, the Eleventh Circuit Court of Appeals affirmed an Occupational Safety and Health Review Commission holding that an employer was liable for an incident involving a supervisor working beside an employee who was seen not using fall protection. In Quinlan Enterprises v. DOL the question before the court...
Refusal of Employee’s Request for “Peaceful Calm Environment” Does Not Constitute Failure to Accommodate Under the ADA
Last week Judge Joseph N. Laplante of the United States District Court for the District of New Hampshire issued a decision in Posteraro v. RBS Citizens, N.A. , Civil No. 13-cv-416 (D.N.H. Dec. 29, 2015), on Defendants' Motion for Summary Judgment. The case involved a former Citizens Bank employee...
Dear John, Number Two
Loyal blog readers may recall our post last August reporting on an Ohio company that required its workers to swipe into and out of the restroom at work , so as to monitor the amount of time spent on bathroom breaks. Predictably, that policy was not one tolerated by...
Come All Ye Faithful: Catholic School Receives Coal for Christmas in Recent Massachusetts Ruling
Last week, a Massachusetts state court ruled on a motion for summary judgment finding that an all-girls Catholic School (Fontbonne Academy in Milton, Massachusetts) had violated Matthew Barrett's civil rights when it withdrew a job offer after Barrett listed his husband as his emergency contact person on the school's...
Holi-daze: SHRM's Legal Marijuana Survey
Dear reader, the powers that be at Blog HQ have decreed that all posts between now and next Friday adhere to a holiday theme . So while you're celebrating with seasonally appropriate herbs , consider the results of the survey from the Society for Human Resource Management concerning employer...
Forgot to Mention One Little Thing: Santa Baby and Complete Accounts of Employee Misdeeds
In the holiday song that I most often picture sung by the woman portrayed in Madonna's Material Girl , this year my mind shifted away from diamond rings and men with the "cold hard cash" to what occurs when we "forget" to add something to our list. While the...
Santa Makes Him Hurry: Run Rudolph Run - as to Wellness, the Government Speaks with Forked Hoof
If you have had the feeling that the creators and enforcers of the ACA speak with forked hoof, just see how the Federal Government speaks about wellness programs. The ACA increased the ability of employers to reward employees who engage in healthy activities, such as cardio improvement (or, if...
Ba Rump Pa Pum Whaaaa?: Little Drummer Boy and the Out-of-Date Minimum Lifting Requirements
When was the last time you reviewed the "minimum lifting requirements" in your job descriptions? In several cases this year, courts have looked skeptically at job requirements listed in an employer's job description. Specifically, judges have not been willing to take the employer's word for it that lifting, say...
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