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Fieger Didn't Win This Case

31 January 2023

Fieger Didn't Win This Case

Author: Michael Burns

Geoffrey Fieger is known for being a tough litigator and plaintiff’s attorney. However, his firm lost in a Family and Medical Leave (FMLA) case decided by the Sixth Circuit Court of Appeals last week. The case involved one of his female attorneys requesting unpaid leave to care for her 2-year-old son that she feared had contracted COVID and already suffered from respiratory illness. Before she could formalize the request and provide the necessary FMLA supporting information, Fieger...
U.S. Department of Labor to Require Labor Advisors for all its Agencies

24 January 2023

U.S. Department of Labor to Require Labor Advisors for all its Agencies

Author: Anthony Kaylin

The U.S. Department of Labor (DOL) Secretary Marty Walsh and White House Office of Management and Budget (OMB) Director Shalanda Young issued a joint memo to the heads of executive departments and agencies directing them to designate “labor advisors.”  The purpose of the labor advisors is to assist in the strengthening of implementation and review of Federal contract labor and employment practices based on recommendations from the White House Task Force on Worker Organizing...
Does Your Handbook Need a 2023 Refresh?

17 January 2023

Does Your Handbook Need a 2023 Refresh?

Author: Linda Olejniczak

Updating your employee handbook is a critical annual initiative for an HR department.  It ensures compliance with industry standards and federal and state laws.  

Federal Trade Commission Proposes Elimination of Non-Compete Agreements

10 January 2023

Federal Trade Commission Proposes Elimination of Non-Compete Agreements

Author: Michael Burns

Last week the Federal Trade Commission (FTC) blew the proverbial lifeguard whistle on employer non-compete agreements and said they were going to order “everybody out of the pool.”

Be Careful if Laying Off H-1B Employees

10 January 2023

Be Careful if Laying Off H-1B Employees

Author: Anthony Kaylin

In a time when labor hoarding is occurring in some sectors, yet in others, layoffs are happening, employers with H-1Bs need to follow a process or it could be a costly mistake in which an H-1B is not found to be properly terminated.

 

Changes to Know About in California Background Checking Law

10 January 2023

Changes to Know About in California Background Checking Law

Author: Susan Chance

California is once again looking at making changes to how employers can use information from background checks in employment decisions. The California Civil Rights Department’s Civil Right Council released their most recent draft of changes to their Fair Employment and Housing Ace (FEHA) this past December. This update addresses proposed changes to the use of criminal history for employment decisions.

Three New Laws for 2023 That HR Should Know

3 January 2023

Three New Laws for 2023 That HR Should Know

Author: Anthony Kaylin

Although a number of new laws started January 1, there are three that stand out for HR professionals outside of all the pay transparency laws.  These three laws were encompassed in the FY 2023 Omnibus Spending Bill, and all had bipartisan support.

Government Year-End Update

20 December 2022

Government Year-End Update

Author: Anthony Kaylin

Although it would be expected that the ending of the year should be a quiet one, the Biden administration is going out with a bang that will cause some heartache for employers.  Below is a listing of some of the changes to expect going forward.

GINA Compliance Primer

20 December 2022

GINA Compliance Primer

Author: Michael Burns

GINA or the Genetic Information Non-discrimination Act has been around for well over 14 years. It prohibits discrimination by an employer against employees or applicants because of genetic information. It also prohibits employers from using genetic information when making employment decisions and restricts them from requesting, requiring, or even purchasing genetic information as well as limiting disclosure of such information if they obtain it.

OFCCP’s Proposed New Scheduling Letter

6 December 2022

OFCCP’s Proposed New Scheduling Letter

Author: Anthony Kaylin

The Office of Federal Contract Compliance Programs (OFCCP) has submitted a new scheduling letter and itemized listing for review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).  The present scheduling letter expires in 2023.

A New Approach to ADA Accommodations

22 November 2022

A New Approach to ADA Accommodations

Author: Anthony Kaylin

A recent U.S. Federal 11th Circuit case upended the U.S. Equal Employment Opportunity Commission (EEOC) guidance as to disability and accommodations.  Under the guidance, an employee merely has a functional rather than a medical definition of disability, and the determination of whether an individual has a disability doesn't necessarily hinge on the name or diagnosis of an impairment. Once an employer is on notice, they must engage in an interactive discussion concerning any...
Michigan Circuit Court Reminds Employers About Voluntary Quitting and UI Benefit Qualification

22 November 2022

Michigan Circuit Court Reminds Employers About Voluntary Quitting and UI Benefit Qualification

Author: Michael Burns

Many human resources professionals have experienced the worker that for one reason or another gets fed up and just walks off the job. It’s unfortunate and disrupting but also sets the machinations of employment policy and law in motion. A recent Michigan Court of Appeals case affirms that employees that walk off the job not only voluntarily quit, but also disqualify themselves from unemployment compensation benefits.

How Michigan Legislature Changes Will Likely Affect State Employment Law

16 November 2022

How Michigan Legislature Changes Will Likely Affect State Employment Law

Author: Michael Burns

For the first time in four decades, the Michigan Democratic Party holds control of the state government. Employers have benefited from GOP control over the years as unfriendly employer legislation was bottled up in committees never to see the light of day. With the Michigan Legislature now controlled by a Democrat majority and a Democrat Governor there is not much to stop the flood of pro-labor legislation that has been held back for years.

Employer Guilty in “No Poach” Antitrust Criminal Charge

1 November 2022

Employer Guilty in “No Poach” Antitrust Criminal Charge

Author: Michael Burns

No poaching agreements are arrangements between employers where the parties agree they will not hire one another’s workers. They are also illegal. Last week a healthcare staffing company entered a plea deal with the Department of Justice that held them criminally liable for having a deal in place with an un-named competitor to not raise wages of nurses working in a county school district and to not hire nurses from one another.

Post Dobbs – Dealing with the Travel Issue

25 October 2022

Post Dobbs – Dealing with the Travel Issue

Author: Anthony Kaylin

Earlier this year, the U.S. Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that abortion and access to abortion is not a constitutional right and reverted back to state laws for determining the legality of the procedure.  In other words, only states have the power to regulate abortion and access to it. 

DOL Publishes Proposed Independent Contractor Rule

11 October 2022

DOL Publishes Proposed Independent Contractor Rule

Author: Michael Burns

Yesterday, the U.S. Department of Labor (DOL) published a proposed rule that adopts a six step economic realities test for determining whether a worker is an independent contractor or not. Publication of this rule will rescind the Trump-era rule narrowing the definition of independent contractor.

How Should Employers Handle Workplace Proselytizing?

11 October 2022

How Should Employers Handle Workplace Proselytizing?

Author: Anthony Kaylin

The current U.S. Supreme Court endorses workers’ rights when it comes to expressing religious values at work.  In the last term’s case of Kennedy v. Bremerton School District, No. 21-418 (2022), Kennedy was a football coach who kneeled and prayed on the 50-yard line after a game.  He was suspended by the Bremerton School District in the state of Washington for whom he worked. 

SCOTUS Starts New Term This Week

4 October 2022

SCOTUS Starts New Term This Week

Author: Michael Burns

The first Monday in October heralds the start of the U.S. Supreme Court’s (SCOTUS) new term each year. Last year saw Roe v. Wade and the right to abortion overturned. This resulted in the states and their voters now having to decide on that right. To date, this year the conservative U.S. Supreme Court has announced several new “blockbuster” cases it will hear that may impact employers.

New California Pay Transparency Law

20 September 2022

New California Pay Transparency Law

Author: Anthony Kaylin

California legislature passed S.B. 1162 and is currently waiting for the Governor’s signature, creating new obligations for California employers by amending the earlier pay reporting requirements. 

Remote Workers and the Family and Medical Leave Act (FMLA)

20 September 2022

Remote Workers and the Family and Medical Leave Act (FMLA)

Author: Michael Burns

A recent article published in CCH HRAnswersNow Expert Insights looks at the issue of FMLA coverage for remote workers. In this case, a person worked from their home which was well outside what could be reasonably considered within the coverage area of the FMLA.

NLRB Publishes New Joint Employer Rules

6 September 2022

NLRB Publishes New Joint Employer Rules

Author: Michael Burns

Yesterday, the National Labor Relations Board (NLRB) issued new proposed rulemaking that eliminates the “direct and immediate” control specification in the 2020 rules and adopts a broader rule that finds joint employment if the employers “share or co-determine” essential job terms and conditions. The rule proposal was passed with two board members dissenting.

OFCCP Updates Compensation Compliance Directive

30 August 2022

OFCCP Updates Compensation Compliance Directive

Author: Anthony Kaylin

Earlier this year, the OFCCP released Directive 2022-01: Advancing Pay Equity Through Compensation Analysis.  There was a lot of controversy over the directive, both with respect to expected analysis and analysis to be submitted when a compliance officer requested it.  For the latter, the agency generated discord in the compliance sector, because it was seemingly saying attorney/client privilege can be overturned by the agency. 

Administrative Exemption – An Often Misunderstood and Misused FLSA Classification

23 August 2022

Administrative Exemption – An Often Misunderstood and Misused FLSA Classification

Author: Michael Burns

Of the five major Fair Labor Standards Act (FLSA) exemptions (there are close to 21 other FLSA industry or job exemptions) one of the most misunderstood and misused is the Administrative Exemption. 

Watch out!  A New Lawsuit Could Upend FLSA Exemption Requirements

16 August 2022

Watch out! A New Lawsuit Could Upend FLSA Exemption Requirements

Author: Anthony Kaylin

A new case has been filed in the Northern District of Texas which could upend the Fair Labor Standards Act law (FLSA).  The new case attacks the two-prong approach of the U.S. Department of Labor of establishing exempt employee thresholds using a salary hurdle test and then the duties test. 

For Separation and Other Employment Settlement Agreements Be Sure You Comply with ADEA and OWBPA

16 August 2022

For Separation and Other Employment Settlement Agreements Be Sure You Comply with ADEA and OWBPA

Author: Michael Burns

Last week, by its ruling in Jackson v. General Electric, the Sixth Circuit Court of Appeals reminded employers that they must make sure any settlement type of agreement with an employee complies with the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefits Protection Act (OWBPA). This is not a new development, but the case reminds HR professionals and their legal counsel that any formal agreement settling discrimination or other claims by an employer with an employee,...
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