Employers by now are likely accustomed to hearing about the National Labor Relations Board (“NLRB”) and its efforts to firmly insert itself into both union and non-union workplaces. For the past few years, the NLRB has issued countless decisions invalidating what have otherwise been deemed routine and sensible employment policies, such as requiring confidentiality of internal investigations, clarifying at-will employment, and prohibiting workplace bullying. Recently, however, the NLRB issued a decision involving corporate mergers and acquisitions that will impact companies’ C-suite initiatives, and not just their human resources department.
Monday, August 22, 2016
Friday, August 12, 2016
Seventh Circuit Rules That Title VII Does Not Apply to Sexual Orientation Discrimination Claims, At Least For Now...
As discussed in prior posts, the Equal Employment Opportunity Commission (EEOC) has a strategic enforcement agenda focused on expanding Title VII protections to encompass gender identity and sexual orientation. Courts are weighing in, with varied results. According to the EEOC’s website, a number of federal courts have sided with the EEOC’s interpretation of Title VII, primarily in the context of gender identity. On July 28, 2016, however, the U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit precedent, Title VII’s anti-discrimination protections do not extend to claims of sexual orientation. At the same time, the Seventh Circuit panel observed that there is an “emerging consensus that sexual orientation in the workplace can no longer be tolerated,” and the panel appeared to be nudging the U.S. Supreme Court or Congress to take up the issue and provide direction to the lower federal courts.
Friday, August 5, 2016
We have previously blogged (here and here) about the expanding risks of joint employer liability under various employment laws, most prominently the National Labor Relations Act and the Fair Labor Standards Act. Recent developments underline just how prominent these risks are becoming for many businesses, including traditional employers, staffing and temp agencies, and franchised companies.
The U.S. Department of Labor’s (DOL) Wage and Hour Division recently announced it has obtained a federal court consent judgment and order of $1.4 million jointly against United Plastics, a products manufacturer, and against ASI Staffing Group Corp., which supplied contract labor to United Plastics. The DOL’s announcement explained:
Friday, July 29, 2016
I may be getting older, but it seems like I just wrote last year’s post about changes in Minnesota’s minimum wage law. However fast it seems to you, on Monday, Aug. 1, 2016, Minnesota’s minimum wage will increase again to $9.50 per hour for large employers. The increase stems from significant changes to Minnesota’s minimum wage statute in 2014, providing for higher minimum wage rates over time indexed to inflation. Employers should ensure they are prepared for the change and that they are also preparing for the substantial change in salary requirements for “white collar” exempt employees coming this December under the FLSA.
Minnesota’s minimum wage is based on the size of the employer, as determined by gross sales, with large employers paying more than small employers. Under Minnesota’s amended 2014 law, a large employer is one that has gross sales of more than $500,000 in annual business per year. In contrast, a small employer is defined to have gross sales of less than $500,000 in annual business per year.
Friday, July 22, 2016
*In honor of the Fair Labor Standard Act’s 78th birthday and in light of the important changes to the DOL overtime regulations going into effect December 1, 2016, the Modern Workplace is running a special multipart series entitled “FLSA Fundamentals.” The series has covered some basics of this important law and includes a discussion of the DOL’s new regulations. This is the fourth post in that series.*
As discussed in previous posts, determining the proper FLSA classification of an employee can be taxing. In addition to the “white collar” exemptions (e.g. Executive Employees, Administrative Employees, and Learned Professionals) discussed in a prior blog post in our FLSA Fundamentals series, employers often apply (or rather misapply) two other common exemptions to avoid overtime costs: Computer Employees and Outside Sales Employees.
Thursday, July 14, 2016
As we’ve discussed in prior posts, a top strategic enforcement focus of the EEOC is protecting LGBTQ individuals from discrimination in the workplace. The EEOC filed its first Title VII lawsuits alleging sex discrimination against transgender individuals in late 2014, and the EEOC’s efforts in this area continue to make headlines.
The EEOC’s most recent suit, filed last week, is against Bojangles Restaurants, Inc., which operates a chain of fast food restaurants in the Southeast portion of the United States. In the lawsuit, the EEOC claims that a transgender woman, Jonathan Wolfe, was subjected to a hostile work environment because of her gender identity and fired from her biscuit maker job at a North Carolina Bojangles restaurant in retaliation for reporting the harassment. According to the suit, the alleged harassment included restaurant managers making offensive comments about Wolfe’s appearance and repeatedly demanding that she engage in behavior and grooming practices that are more stereotypically male. The EEOC also alleges that the restaurant’s management forbade Wolfe from visiting the restaurant off-duty while dressed as a woman and that an assistant manager made harassing remarks about the need “to pray.” In addition, the EEOC alleges that the restaurant’s director prohibited Wolfe from wearing makeup, fake fingernails, or her hair in braids while at work and threatened to terminate her if she did not remove her braids. According to the suit, Wolfe complained on more than one occasion, with no relief, and then was fired on the same day that she called an employee hotline to complain about the restaurant director’s treatment of her.
Monday, July 11, 2016
The federal Occupational Safety and Health Administration (“OSHA”) issued a final regulation in May that establishes new electronic recordkeeping and reporting requirements. The overall purpose of the new regulation is to reinforce anti-retaliation protections for employees who report workplace injuries and illnesses. Electronic reporting requirements under the new rule go into effect on January 1, 2017, but employers must comply with the rule’s anti-retaliation provisions by August 10, 2016.