The Public Safety Employer-Employee Cooperation Act: A Bad Law at a Bad Time
Over the past year, the “card check” legislation ironically known as the Employee Free Choice Act (“EFCA”) has garnered a lot of attention. With large Democratic majorities in both chambers of Congress and a liberal Democrat in the White House, it seemed only a matter of time until organized labor received a payoff for its nearly $10 million dollar investment in President Obama and EFCA became law. (more)
Military Caregiver FMLA Leave Modified
When the President signs the National Defense Authorization Act of 2010 (NADA) on October 28, 2009, there will be changes made to the military caregiver requirements of the Family and Medical Leave Act. The amendments implement bills pending in both houses (H.R. 3403, S. 1543). (more)
Learning the Ropes of E-Verify Rules and Procedures
E-Verify is a free-of-charge, internet-based system created to enable employers to electronically verify that employees are legally eligible to work in the United States, regardless of citizenship. Participation in E-Verify has been voluntary, but that will change for certain federal contractors beginning on September 8, 2009. (more)
Supreme Court Holds in Favor of White and Hispanic Firefighters
On June 29, 2009, the final day of the Supreme Court’s October 2008 Term, the Court ruled in favor of white and Hispanic firefighters who challenged the City of New Haven, Connecticut’s decision to not certify a promotional examination. See Ricci, et al. v. DeStefano, et al., 557 U.S. ___ (2009). In a 5-4 opinion, Justice Anthony M. Kennedy said an employer's fear of litigation by racial minorities cannot justify intentional race discrimination against white employees absent a “strong basis in evidence” for believing racial minorities could prevail on a “disparate impact” claim. (more)
Maryland General Assembly Clarifies Flexible Leave Act
On October 1, 2008, Maryland’s Flexible Leave Act (“MFLA”) went into effect. The law, which applies to employers with 15 or more employees, requires businesses that provide employees with any form of paid leave to permit employees to use such leave for the illness of an immediate family member. (more)
Department Of Labor Issues Guidance On Reducing Pay For Furloughs
As employers try to navigate the economic downturn, companies are increasingly turning to temporary furloughs to save labor costs. When furloughing employees, employers require staff to use accrued leave or take unpaid time off. However, if not done properly, this practice could result in employers converting otherwise exempt employees into non-exempt staff who become entitled to overtime under the Fair Labor Standards Act and its state law counterparts. (more)
President Obama Signs Ledbetter Fair Pay Act
On January 29, 2009, President Obama signed the Lily Ledbetter Fair Pay Act. The legislation, which is the first law signed by the new President, amends federal civil rights laws to provide that a claim of discriminatory compensation must be filed within no more than 300 days of the date on which the employee receives a paycheck or other benefit check (such as a pension check) affected by a discriminatory decision. The law reverses the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Company, which required that employees file claims within no more than 300 days of the date on which the discriminatory compensation decision was made. (more)
Maryland's Flexible Leave Act Set To Take Effect October 1st
On October 1, 2008, Maryland's recently enacted "Flexible Leave Act" goes into effect. The law, which applies to employers with 15 or more employees, requires businesses that provide employees with any form of paid leave to permit employees to use such leave for the illness of an immediate family member. (more)
Some EAD’s Extended to Two Years
The Employment Authorization Document (EAD) is the card foreign nationals may use to gain employment in the U.S. On the Form I-9, the EAD is a List A document, meaning that the card itself is enough to demonstrate employment eligibility in the U.S. These cards can be legitimately obtained by foreign nationals in several different ways.
(more)
USCIS Makes it Easier for H-1B’s to Stay in the U.S.
One of the biggest criticisms of the U.S. immigration policy has been the inability to bring educated and skilled workers into the U.S. This issue has been so contentious that Microsoft actually moved some of its facilities to Canada in order to bring in the engineers they needed from outside of the U.S. While members of Congress are attempting to address this problem by raising the yearly allotment of H-1B’s, this issue has been addressed by Congress before.
(more)
President Bush Signs Order Requiring All Federal Contractors to Use E-Verify
E-Verify has been hailed as the salvation of America as well as the harbinger of its end. In truth, it is neither of these. E-Verify is a process where employers can check the identification information of new hires against the Social Security Administration’s (SSA) database and employment eligibility through the United States Citizenship and Immigration Services (USCIS) database. By the end of 2008, all employers with a federal contract will be required to use it. On June 6, 2008, President Bush signed an Executive Order requiring all federal contractors to use E-Verify to check the identity of new hires and any employee working directly under the federal contract. Within six days, the Federal Register had published proposed regulations for the implementation of this Order.
(more)
Some members of the plaintiff’s bar characterize the creation of a private cause of action under Article 49B as a “leveling of the playing field” after years of fighting for respect in the federal courts. Not surprisingly, I suspect, I have a different take. “Employer friendly” decisions from the federal courts often come about because of the quality (or the lack of quality) of the case brought. The notion that Maryland’s courts will provide a more plaintiff friendly venue for discrimination claims may ultimately prove wrong if the underlying facts of the complaints filed do not ultimately support the claim.
(more)
Maryland Enacts Emergency Legislation Regarding Leave Pay Outs.
On April 24, 2008, Governor O’Malley signed into law Senate Bill 797. This emergency legislation, which was drafted by the author and takes effect immediately, returns to Maryland employers to right to have a written policy which determines whether or not unused leave time must be paid to a departing employee. The legislation reverses the effects of a 2007 unpublished court decision and subsequent change in policy by the Maryland Department of Labor, Licensing and Regulation (“DLLR”).
(more)
President Bush Expands FMLA to Cover Servicemember Leave.
As a part of the National Defense Authorization Act for Fiscal Year 2008, the House and Senate passed legislation that amends the Family and Medical Leave Act of 1993 to cover an employee’s absence from work to care for a “blood relative” who becomes injured or ill while on active duty or in a contingency operation. President Bush signed the legislation on January 28, 2008.
(more)
INA §204(j) Allows Aliens to Adjudicate Adjustment of Status while in Removal Proceedings.
Section 204(j) of the Immigration and Nationality Act provides relief for aliens who change jobs after their employment-based visa petition has been approved.
(more)
Arrested or Convicted for a crime? Think Again Before Checking No.
Have you ever been arrested or convicted of a crime? Before you answer that question, you may want to read further. There has been a great deal of confusion regarding the definition of "conviction" in immigration matters.
(more)
Why Should Employers Have an Internal I-9 Audit?
I-9 forms appear simple. It's a one page form, half of which the employee fills out. Yet, errors in completing the I-9 form can result in significant civil and criminal penalties being brought both against the company and human resources managers individually.
(more)
INA §204(j) Allows Aliens to Adjudicate Adjustment of Status while in Removal Proceedings
Section 204(j) of the Immigration and Nationality Act provides relief for aliens who change jobs after their employment-based visa petition has been approved.
(more)
After filling out the initial I-9, the next step to ensuring compliance with the I-9 regulations is to conduct an in-house audit.
(more)
I-9 Verification Documents: It's Not Just Social Security and Drivers Licenses
The last time the I-9 form was updated was 1991. Since then, immigration regulations changed substantially with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA").
(more)
New FMLA Regulations Coming? DOL Wants Public Comment by February 2, 2007.
Here is a question you have heard before: Will the DOL ever revise its FMLA Regulations? It looks as if the issue is finally on the DOL’s radar screen. In a signal that revisions may be on the horizon, the agency announced ...
(more)
OFCCP Issues New Rule On Internet Applicants
On February 6, 2006, new regulations from the Office of Federal Contract Compliance Programs ("OFCCP") on the definition
of "internet applicants" will take effect.
(more)
Labor Department Issues Veteran's Re-Employment Regulations.
The U.S. Department of Labor issued regulations yesterday, December 20, 2005, which outline employer and employee rights and
responsibilities under the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA").
(more)
Norman Rockwell – Closet Bigot?
In the world of fine arts, Norman Rockwell generates sniffs as a "populist." Most of his paintings
evidence a commitment to American values that are almost sappy. One of his popular pieces from 1964
entitled The Problem We All Live With portrays a young African- American girl going to school in the
accompaniment of four male adult escorts.
(more)
Burdens of Proof Under the FMLA – An Elusive Animal.
(The second of a two part series)
One of the developing conflicts under the Family and Medical Leave Act (FMLA or Act)[1]
is the appropriate burden of proof to be applied in assessing a plaintiff's claim. Last month we
discussed the Interference/Entitlement theory and the split in the Circuits on the appropriate burden
of proof to apply in those cases. In this article, we consider the Discrimination/Retaliation theory,
which has caused less conflict.
(more)
Burdens of Proof Under the FMLA – An Elusive Animal.
(The first of a two part series)
One of the developing conflicts under the Family and Medical Leave Act (FMLA or Act)[1]
is the appropriate burden of proof to be applied in assessing a plaintiff's claim. In the first
few years after the FLMA became law in 1993, many courts automatically applied the McDonnell-Douglas
analysis in all cases, as they do when addressing virtually every other employment related claim.
After ten years, however, courts are focusing more directly on burden shifting issues.
(more)
EEOC Updates Advice on National Origin Discrimination.
Situations posing a risk of national origin discrimination in the workplace are likely to multiply
in coming years, as America addresses the continuing terrorist threat while accommodating ever larger
numbers of workers having foreign birth or ancestry. [1] To help employers cope with these
situations in compliance with laws against national origin discrimination, the Equal Employment
Opportunity Commission has developed a new chapter in its Compliance Manual applying current laws to
new situations arising in the workplace. [2]
(more)
Supreme Court Clarifies "Continuing Violations"
For years, employment lawyers have been confronted with claims of "continuing violations" of
discrimination. The litigation strategy is simple, but the stakes are high: a plaintiff's lawyer
wants to expand her case to include as many incidents of alleged discriminatory treatment as possible.
Defense lawyers want to narrow the case to only those alleged acts that fall within the statute of
limitations for filing a charge. A broad interpretation of what constitutes a "continuing violation"
favors the plaintiff, with a more narrow definition assisting employers. It was, therefore, with
great anticipation that employment lawyers waited to see what track the Supreme Court would take
in its latest ride on the continuing violation train.
(more)
First Appellate Case Considers Who Is An Employer Under Federal Polygraph Law.
Management employment attorneys often get calls from clients who suspect that missing inventory
is the result of an "inside job" by one or more employees. Most of the time, the client has not
yet decided to play Sam Spade, nor hired an investigative firm to do it for him. Sometimes, however,
the thought of playing private eye is too attractive, and an investigation has already begun -- with
private investigators on the scene interviewing employees. If you are lucky, the call goes something
like: "Can't we just give the employees a lie detector test?" If you are not, the question is:
"So, we gave this guy a lie detector test and he flunked. So we fired him. Now what do we do?"
(more)
It did not take long for employers in Family and Medical Leave Act (FMLA)[1] cases
to feel emboldened and renew challenges to Department of Labor regulations following the Supreme
Court's decision earlier this year in Ragsdale v. Wolverine Worldwide, Inc.[2]
At least 11 different regulations implementing the FMLA have been challenged in the last few
years, and that trend will no doubt continue after Ragsdale, where the Supreme Court
struck down the FMLA rule covering designation of leave and found "considerable tension" between
the law and DOL regulation Section 825.700(a). [3]
(more)
Veganism A Religion? It Depends.
A few years ago, it was widely reported that a California Regional office of the Equal Employment
Opportunity Commission (EEOC) found probable cause to believe that the Orange County Transit
Authority (OCTA) engaged in religious discrimination when it fired an insubordinate "vegetarian" bus
driver who refused to hand out free hamburger coupons.[1]
(more)
Cocaine snorting ... a new way to make your fortune
Among the windows of reason that Congress placed in the Americans With Disabilities Act is
a provision that does not require employers to tolerate drug abuse. The common sense notion
that employees who are currently using illegal drugs are not protected by the ADA seems
relatively straightforward. Hughes Aircraft Systems Company interpreted that provision
to mean that it could safely be rid of Joel Hernandez when he tested positive for cocaine in 1991.
(more)
Comedian Steve Martin rode to fame in the 1970s on the crest of certain catch phrases that emphasized
the silliness of most excuses offered to explain dumb behavior. One routine that brought gales of
laughter was his suggestion that the perfect alibi for a person caught committing a bank robbery,
upon being reminded that robbery is a crime, was to respond, in a drawn out, and shocked tone, "I FORGOT!"
(more)
I Was Only Periodically Suspending Consciousness
If you like to work with words and language, you know your way around a dictionary and a
thesaurus. Unfortunately, some arbitrators could not locate either in their office. Instead,
those arbitrators employ self-inspired intuition to describe analyses that would not pass
scrutiny in a middle school logic class.
(more)
Successful insurance agents may be the Platonic paragon of charm. There is no means other than
enchantment to explain some of the policies that people purchase willingly. I am not saying that
insurance is not necessary, and I like my insurance agents. They are, after all, charming.
(more)
There may be nothing more sacred than the truth, but not in the eyes of the National Labor
Relations Board, or the United States Court of Appeals for the Seventh Circuit.
A union activist, acting in the name of union organizing, can tell the biggest whoppers
he cares to concoct, and find warm support in the arms of some parts of the federal government.
(more)
Employee's Treatment at Pork Processing Plant Not Kosher
April Landers' experience at Quality Pork Processors, Inc. was less than desirable. She was hired in December 1998 to
work the second shift in the "skinning room" of the slaughterhouse. One month into her employment, two co-workers
began making daily derogatory comments about Landers' boyfriend.
(more)
Welcome to the unemployment office - please check your common sense at the door.
When an employer decides to terminate an employee, often the next question I am asked is whether to challenge unemployment.
A picture immediately comes to mind of a bureaucratic system worthy of Lewis Carroll.
(more)
Imagine yourself as the boss of the Michigan Corrections Department. One of
your probation officers develops a peculiar attraction to women lawyers who
represent convicts in his charge.
(more)
Sexual Orientation - - Now a Protected Class in Maryland
Opponents to Maryland's legislation protecting sexual orientation have dropped
their efforts to take the matter to a vote. As a result, the law became
effective over the Thanksgiving weekend.
(more)
Punitive damages – those awarded to punish an employer for its discriminatory
acts – are available under Title VII in certain circumstances. Can they be
awarded if the plaintiff has suffered no other damages? Courts are split on
the issue.
(more)
Crossing Lines – Transgender Accomodations
Court and administrative wrangling with permutations of the law of sex and disability
discrimination is creating interesting morning reading for employment lawyers these days.
Before 1998, the sex harassment and discrimination universe was easy to understand.
(more)
FMLA Pop Quiz -- Do You Know Enough To Comply?
The Family and Medical Leave Act (FMLA) can be a snake in the grass for employers who are required to comply with
this statute but fail to do so. The FMLA requires covered employers to provide up to 12 weeks of unpaid leave to eligible
employees under certain circumstances. Most employers comply, but many do not.
(more)
Second Circuit Strikes Down FMLA Regulation on Late Employer Determination of Eligibility
The United States Court of Appeals for the Second Circuit has joined a
growing number of federal courts that have rejected certain FMLA Regulations
issued by the Department of Labor. These decisions are a breath of fresh air
for employers.
(more)
Purveyors of alternative dispute resolution as a vehicle to solve "whatever ails ya’" often oversell their case
like a sleezy snake oil salesman. As a result, too many employers who have no first hand experience with binding
arbitration believe that implementation of an arbitration system to address workplace disputes will produce fair,
reasonable, and efficient results.
(more)
Changing attitudes of society toward alcohol and tobacco use, coupled with every politician’s instinctive drive to
perpetuate her term in office, have resulted in legal restrictions upon retailers that require prescience of the
nation’s storekeepers. From coast to coast, purveyors of alcohol are charged with responsibility and liability for the
behavior of customers. It is almost uniformly true that if you sell alcohol, you had better not sell it to anyone who
"appears to be intoxicated."
(more)
Like no other place on earth, this country treats employers in safety matters as criminals, even
where the violation has been the result of employee misconduct. In fact, OSHA takes the position
that when an employee violates an employer's safety rule that is designed to implement a government
requirement, the employer is guilty of violating the law.
(more)
Does the Family and Medical Leave Act Apply?
The Family and Medical Leave Act of 1993 gives employees yet another reason to sue their employers.
The Act sounds simple enough. Employers must provide their employees with up to 12 weeks of unpaid
leave per year for the birth or adoption of a child, or for the serious health condition of the employee
or a close family member. In practice, however, the Act is a nightmare.
(more)
Supreme Court Finds Same Sex Harassment Illegal
While assuring football coaches that they can continue to pat players on the behind without being
sued for sex harassment, the United States Supreme Court has squarely endorsed the concept that
other swats on the butt "in the proper context" can be illegal under federal law.
(more)
Supervisor's Disciplinary Checklist
Before imposing discipline, each supervisor must
complete this checklist in full.
(more)
Retaliation Claims and the EEOC
The Equal Employment Opportunity Commission ("EEOC") issued new instructions to its staff regarding
the investigation of retaliation claims in May 1998. These guidelines come on the heals of a number of
court decisions regarding Title VII's scope when an employee claims that he or she has been retaliated
against for complaining about perceived discrimination.
(more)
Maryland Wage and Hour Law Pitfalls
- Pay for Travel Time
- Pay for Training Time
- Bonuses and Overtime
- Compensatory Time
- Two or More Jobs in the Same Workweek
- Payment for Accrued, Unused Leave Time upon Termination
(more)
Regulations on Waivers of Discrimination Claims
The EEOC has published new rules on the waiver of discrimination claims under the Age Discrimination
in Employment Act ("ADEA"). These new regulations went into effect on July 5, 1998. Because
employers may wish to obtain waivers as part of an employee's severance pay package (see Releases),
these new rules much be taken into consideration.
(more)
Should You Get a Release When You Fire Someone?
Employers do not like it when they discharge an employee with severance pay, and a couple months
later, the employee files some type of discrimination claim. Fortunately, there is something that
employers can do to minimize the likelihood and impact of lawsuits by former employees.
(more)
Employer Liability for Supervisory Sex Harassment
The EEOC has published Guidance regarding employer liability for harassment by supervisors under Title
VII of the Civil Rights Act of 1964. The Guidance, Notice No. 915.002, was effective the week of June
21, 1999. The Guidance makes clear that an employer may be vicariously liable for harassment by its
supervisors, including harassment based on race, color, religion, national origin, age, disability, or in
retaliation for engaging in protected activity.
(more)
Defense Strategies for Handling Discrimination Charges
When a company receives a discrimination charge filed with the EEOC,
consider the following:
(more)
When is a Disability a Disability under the ADA?
An individual with epilepsy applies for employment with a messenger service company. Without her
medication, the individual experiences seizures that substantially limit her ability to walk and to drive.
(more)
Abusive Supervisors and Emotional Distress
I genuinely believe that the workplace should be a civil environment where employees are free from
sexual harassment, vulgar language, and mental abuse. I also believe that supervisors deserve to be
free from incompetent employees, lazy employees, and bad employees in general.
(more)
In 1938, Congress passed the Fair Labor Standards Act, establishing a minimum wage and a forty-hour
workweek as the legal basis for overtime. While the concepts of overtime and minimum wage seem
simple, the FLSA is perhaps the most complex labor law in the land.
(more)
The Commonsense Rules of Discipline and Discharge
No employer action generates more litigation than the decision to discharge an employee. Discharges
have become the source of expensive lawsuits, some of which can put a small company out of
business. Even where discipline is clearly warranted, sloppy personnel practices can leave the
decision open to challenge.
(more)
Homicide and Workplace Violence
OSHA wants to regulate workplace violence. According to OSHA statistics, there were 709 workplace
homicides in 1998, down from the 1984 high of 1080. Nevertheless, there were nearly 400,000
aggravated assaults, over 50,000 rapes and sexual assaults, and 84,000 robberies.
(more)
A federal trial court has ruled that while the depression caused by such a boss may be a disability
under the ADA (Americans With Disabilities Act), it is not reasonable to expect the employer to
transfer the employee to accommodate the disability.
(more)
Commuting to Work and the FLSA
Under the Fair Labor Standards Act, employees do not have to be compensated for time spent
commuting to work. Further, service and construction employees do not have to be paid for the time
it takes them to report to their first job in the morning, unless they are first required to report into a
central location.
(more)
No Whistle Blower Protection in Virginia
The Virginia Supreme Court has refused to modify the employment-at-will doctrine to protect whistle
blowers. In Virginia, an employee who complains to government authorities that his employer is
breaking the law gains no protection from retaliatory discharge.
(more)
Model Email and Voice Mail Policy
Email and voice mail have generated problems in the workplace. The following policy helps to eliminate some
of those problems.
(more)
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