Yearly Archives: 2013

More Momentum For A Minimum Wage Increase

While the Fair Labor Standards Act currently sets the Federal minimum wage at $7.25 per hour, the law permits states and localities to require higher wages within their jurisdiction.   California recently became the latest state to move to a higher minimum wage, ahead of legislation proposed by the Obama administration.  The new California law will [...]

Read More

Department of Labor to Implement New FLSA Regulations for Home Health Care Workers

The Fair Labor Standards Act (“FLSA”) requires most employers pay their employees minimum wages and further mandates overtime pay for all hours in excess of a regular 40 hour workweek.  However, the FLSA does contain several notable exemptions.   One of these exemptions, the “Companionship Exemption,” excludes certain home health care employees from minimum wage and overtime [...]

Read More

U.S. Supreme Court Rejects Mixed-Motive Instruction for Title VII Retaliation Cases

Title VII of the civil Rights Act of 1964 is the primary Federal statute that prohibits employers from discriminating against employees on the basis of the race, religion, sex and national origin. In order to lessen and clarify a plaintiff’s burden of proof in discrimination cases, Congress amended Title VII in 1991 to provide that discrimination occurs when a [...]

Read More

Blue Penciling of Non-Competes in Virginia?

Non-competition agreements, AKA non-competes, are enforceable in Virginia provided that they are drafted in terms that are reasonable with regard to duration, geography and scope.  When a non-compete is facially unreasonable because it is vague or overbroad with regard to one of those components, Virginia Courts will refuse to enforce the entire restrictive covenant. Enter the [...]

Read More

Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases

Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin.   The standard for liability often begins with the employment position of the alleged harasser.  When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive [...]

Read More

EEOC Updates ADA Disability Guidance for Individuals with Epilepsy and Diabetes

The Equal Employment Opportunity Commission (“EEOC”) is the U.S. Agency responsible for administering several anti-discrimination statutes, including the Americans with Disabilities Act (“ADA”). The Americans with Disabilities Act and ADA Amendments Act of 2008 prohibit discrimination against qualified individuals who have impairments that substantially limit a major life activity, have a record of a substantially limiting impairment, or [...]

Read More

Successor Liability Found for FLSA Overtime Claim After Asset Purchase

In March 2013, the Seventh Circuit held in Teed, et. al. v. Thomas & Betts Power Solutions, L.L.C, that a buyer of a prior company’s assets could be liable for FLSA overtime claims asserted against the predecessor.  A company seeking to assume another business commonly will “buy the assets” of a defunct or insolvent company in [...]

Read More

Picking Off Lead Plaintiff Ends FLSA Collective Action

Under the Fair Labor Standards Act (“FLSA”) collective actions for unpaid overtime are treated differently than typical “class” actions.  In an FLSA suit, a plaintiff can sue individually and on behalf of similarly situated employees.  However, other plaintiffs must affirmatively consent to join the case, which is different that the “opt out” procedures of Rule [...]

Read More

Can Your Employer Lay Claim to Your Social Media Account?

Your employer sets up personal Twitter and Linked-In accounts for you to help promote their business.  The employment relationship invariably ends, and both parties lay claim to ownership of the accounts.  Who prevails? A Federal Court in Pennsylvania addressed this issue recently in the case of Eagle v. Edcomm, et al.  In Eagle, the employer had key employees [...]

Read More

Does the FMLA Provide for a”Light Duty” Return to Work?

The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013).   In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA).   After his 12 weeks of FMLA expired, the employee requested to [...]

Read More

Will “Jobless” Applicants Become a New Protected Class?

An employment rights debate is brewing in New York City.  Mayor Bloomburg has vetoed a local Council bill that would give protected class status to “unemployed” workers in New York City, making it illegal for employers to discriminate in their hiring practices due to job status.  Council is expectd to override the veto. This discrimination measure seeks to prevent employers from advertising [...]

Read More

Can an Employer Require Random Alcohol Tests?

A U.S. District Court in Pennsylvania recently addressed the issue of whether an employer may utilize a random alcohol testing policy for its employees. Initially, it is important to note that drug and alcohol testing testing standards differ between government and private sector employers.  Government employers, who are subject to Constitutional search and seizure restrictions, must survive a [...]

Read More

Are Liquidated Damages Mandatory in an FLSA Retaliation Claim?

While recent Court decisions have made it easier for employees to allege retaliation for asserting their right to receive overtime pay under the FLSA, the availability of liquidated damages continues to arise as a disputed issue in retaliation cases. In a successful overtime lawsuit, the FLSA provides that the Court must award liquidated damages (double the unpaid overtime) [...]

Read More

Newsflash: Don’t Post Vacation Pictures While You’re Out On FMLA

Under the Family Medical Leave Act (FMLA), qualified employees are entitled to take up to 12 weeks of protected medical leave in a twelve month period for certain purposes involving serious medical conditions. A qualifying purpose includes a serious health condition that renders the employee unable to perform the functions of their position. In Linebury v. Detroit Medical [...]

Read More

Limitations in Virginia FOIA Law to be Considered by Supreme Court

The Virginia Freedom of Information Act, Va. Code Section 2.2-3700 et. seq, sets the terms and conditions for the request and disclosure of public records from public bodies, agencies and officials in Virginia.   However, not all records are subject to disclosure.  For example, most personnel records are to be kept confidential, except that employees [...]

Read More

Court Dismisses EEOC Suit Asserting Discriminatory Impact of Credit Checks

An Ohio U.S. District Court has dismissed the EEOC’s lawsuit against Kaplan Higher Learning Education Corp., which claimed that Kaplan’s systematic use of credit reports to screen applications for financial positions produced a discriminatory impact on minority applicants.  The decision provides some validation for a common business practice of identifying applicants whose credit background may [...]

Read More

Obama Administration to Push Minimum Wage Increase

As outlined in his State of the Union Address, President Obama will propose an increase in the Federal minimum wage to $9.00 per hour, with additional provisions that automatically adjust the rate with inflation.   Currently the minimum wage is $7.25 per hour, though some states and localities have set a higher rate.  If successful, [...]

Read More

New FMLA Rules on the Horizon

The FLMA, which now has been in effect for 20 years, has been fine tuned over the years through regulations and Court decisions.  In March of 2013 the Department of Labor will approve its latest regulatory modifications. Notable changes involve the calculation of intermittent leave, military caregiver leave for veterans, and qualifying exigency leave for [...]

Read More

Workplace Discrimination Trends

The Equal Employment Opportunity Commission (“EEOC”) is the Federal Agency responsible for handling initial charges of discrimination for claims involving race, gender, sexual harassment, religion, age and disability.   Within its enforcement role, the EEOC tracks the number and type of charges filed on annual basis, providing some insight into the prevalence of various claims in [...]

Read More

Employment Law Policies: Social Media in the Workplace

There is no denying that social media as become the modern day “water cooler,” a virtual (and more public) platform where employees may gather to discuss a range of office issues.  These issues often range from personal concerns, collective work interests, office gossip, and perhaps derogatory perceptions of other employees or a business itself.   At issue [...]

Read More