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Home » employment law
EMPLOYMENT LAW UPDATE

Civility & conduct rules, marijuana, and website access & ADA on the HR radar

April 28, 2022 by

By Mike O’Brien Get ready to take a new look at your employee handbook. The National Labor Relations Board (NLRB) is widely expected to issue a decision soon that will mean increased scrutiny of common types of workplace rules, including civility and conduct rules. In a case pending before the Board, its General Counsel submitted a brief last month urging a return to an Obama-era standard for assessing the lawfulness of employer rules. A quick primer may be helpful. The NLRB is the federal agency charged with enforcing the National Labor Relations Act (NLRA). Section 7 of the Act gives employees the right to discuss pay and other terms and conditions of employment, and to engage in concerted activity to improve them. A common misunderstanding is a notion that the… . . . read more

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AWAITS SIGNATURE

Forced arbitration of sexual assault and harassment coming to an end

February 25, 2022 by

By Mike O’Brien The United States Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act in February. The legislation had previously been approved by the House of Representatives, and now awaits President Biden’s signature. Once signed, the new law will amend the Federal Arbitration Act to make pre-dispute mandatory arbitration agreements unenforceable with respect to claims of sexual assault or sexual harassment. Rather than being required to arbitrate such claims, the employee-plaintiff will have the option to bring the case in court or before an arbitrator. The bill had broad support in both political parties. Importantly, the law does not apply to arbitration agreements for other types of employment-related claims. Employers who use mandatory arbitration agreements should consult with experienced employment law counsel about how this… . . . read more

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Employment Law Update

Paid leave for vaccine tax credit updated & employer ups premiums for unvaccinated

September 6, 2021 by

By Mike O’Brien Update to the paid-leave tax credit expansion—paid leave for employees to receive a COVID-19 vaccine  As previously described in these updates, the Treasury Department and the IRS announced that eligible employers could receive paid-leave tax credits under the American Rescue Plan Act (ARPA) for providing leave for each employee receiving a COVID-19 vaccine and for any time needed to recover from the vaccine. Generally, the tax credits are available for qualified leave wages an eligible employer provides with respect to leave taken by employees beginning on April 1, 2021, through Sept. 30, 2021, if the leave would have satisfied the requirements of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, as amended for ARPA. An eligible employer is generally an… . . . read more

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Employment Law Update

Making faces doesn’t count as retaliation

July 18, 2021 by

By Mike O’Brien Not every negative consequence amounts to retaliation In asserting a claim for retaliation, an employee must prove he or she suffered a “materially adverse action.” But that probably doesn’t include someone “making faces” at you. In Fisher v. Bilfinger Industrial Services Inc., the employee alleged that his supervisor retaliated against him by (among other things) “making faces at him.” The First Circuit Court wasn’t impressed. The court noted that “adverse employment actions” are things like “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” “Making Faces,” on the other hand, amounts to “a frivolous claim that does not implicate Title VII.” In the litigation world, we call this a “bench slap.” You can read the full decision here. More limits on non-competes . . . eventually On July… . . . read more

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EMPLOYMENT LAW UPDATE

New guidance, sort of, about COVID-19 in the workplace

June 7, 2021 by

By Mike O’Brien EEOC provides new COVID-19 guidance The Equal Employment Opportunity Commission (EEOC) has released some new guidance on COVID-19 issues at work. Here are the four EEOC-noted highlights of the most recent update, in late May: First, an employer can require that all employees physically entering the workplace be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the laws prohibiting disability and religious discrimination. Additionally, from the EEOC’s perspective, “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” Second, the federal EEO laws do not prevent/limit employers from offering incentives to employees to get… . . . read more

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EMPLOYMENT LAW UPDATE

How HR regulations could change under Biden administration

November 20, 2020 by

By Mike O’Brien bio Employers may be wondering how a Biden administration will affect workplace laws. Prior to the election, Biden’s campaign website gives some clues as to his priorities in this area. Biden lists the failure to pay minimum wage and overtime pay, forcing off-the-clock work, and misclassifying workers as problems resulting in billions of dollars a year in wage theft. To address those issues, he proposes a phased-in implementation of a $15 per hour federal minimum wage (including eliminating the tip credit). He also supports the adoption of a more stringent test for classifying workers as independent contractors, similar to the ABC test employed by California. This type of test would almost certainly result in many more workers being deemed employees and fewer being properly classified as independent… . . . read more

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EMPLOYMENT LAW UPDATE

The workplace in 2020: political talk, COVID-19 violence, executive order

October 24, 2020 by

By Mike O’Brien bio Don’t forget labor relations rules when employees talk politics at work During this contentious election season—with a highly polarized American electorate—many employers may be grappling with problems arising from workplace political discussions. Research by the Society for Human Resource Management (SHRM) has indicated that more than a quarter of workers report regularly talking about politics at work. Disputes and tension often result. Employers wishing to regulate political speech at work should remember that the National Labor Relations Act (NLRA) may affect their options. Although employees often assert that they have a First Amendment right to free speech, this is a misconception. The First Amendment restricts government action, not that of private employers. However, Section 7 of the NLRA gives employees the right to talk to each… . . . read more

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EMPLOYMENT LAW UPDATE

Top 10 questions an employer should ask before returning employees to work

May 26, 2020 by

By Mike O’Brien bio As various states and municipalities across the country lift shutdowns and begin easing COVID restrictions, employers are faced with complex questions about safely bringing their employees back to the workplace. We’ve compiled the top 10 questions every employer should consider before returning employees to work.    How do we implement proper infection prevention measures? First, and perhaps foremost, employers should design, implement, communicate, and begin to monitor basic infection prevention measures as they return employees to onsite work. Although a complex task, OSHA and CDC have both published step-by-step instructions for employers on how to implement appropriate infection prevention measures. OSHA has published an employer Guidance on Preparing Workplaces for COVID-19, which outlines the specific steps it believes all employers should take to reduce workers’ risk of exposure… . . . read more

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INSIGHT

Employment Law Update: The New Year’s Resolutions Edition

December 31, 2018 by

By Mike O’Brien  bio
A lawyer and doctor were talking together at a New Year’s party when the doctor complained about how people always asked her for free medical advice. She said…


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HUMAN RESOURCES

What you need to know about complying with the FLSA

November 2, 2018 by

To be or not to be exempt from overtime pay under the Fair Labor Standards Act (FLSA)? That is the big question, according to…


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