Employer Law Report

Archives: Traps for the Unwary

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Silence equals acquiesence, equals promissory estoppel claim

In Jennifer Trehar v. Brightway Center, Inc., the Seventh District Court of Appeals held that a promissory estoppel claim can lie even without an explicit promise—silence where an ordinary person would make a statement or take action.


Jennifer Trehar was employed at Brightway Center, a Christian non-profit, since 2010. In June 2012, she claimed she informed Brightway on two different occasions that she planned to move in with her boyfriend. She claimed that, on the first occasion, she was congratulated by her boss on the move. On the second occasion, she was granted permission to miss a work …

OSHA fines to increase almost 80%

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) will increase its fines to reflect inflation. For willful and repeat citations, this will mean an increase in the maximum possible penalty from $70,000 to around $125,000. For serious citations, it will mean an increase in the maximum possible penalty from $7,000 to around $12,600. The Bipartisan Budget Act of 2015, signed into law by President Obama on November 2, allows OSHA a one time “initial adjustment” for inflation and then allows OSHA to adjust for inflation annually after that.

OSHA penalties are calculated from a number …

Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, …

Second Circuit rejects DOL test for unpaid internships

The Second Circuit Court of Appeals in Glatt et al. v. Fox Searchlight Pictures, Inc. recently rejected the Department of Labor (“DOL”) six factor test for determining whether an individual has been properly classified as an unpaid intern in favor of another test that looks at whether the intern or the employer is the primary beneficiary of the relationship.

The DOL’s six factors are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;

NLRB files complaint against postal service for not bargaining with union over effects of data breach incident

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”) apparently think that there should be an additional step when the data breach involves the personal information of employees who are covered by a collective bargaining agreement – bargaining over the effects of the data breach on, and the remedy to be provided to, the …

Reminder to federal contractors and subcontractors: April 8th effective date for expanded discrimination protections

In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.

Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now …

The U.S. Securities and Exchange Commission brings its first whistleblower enforcement action based upon an allegedly overbroad employee confidentiality agreement

The U.S. Securities and Exchange Commission (SEC) has now brought its first whistleblower enforcement action against a publicly traded company under the Dodd-Frank Act of 2010 for utilizing an overly broad employee confidentiality agreement. Specifically, the SEC alleges that KBR, Inc., has violated the Act by implementing employee confidentiality agreements that “potentially discouraged” employees from becoming whistleblowers by reporting misconduct to the SEC. This is illegal under the Act, and specifically under SEC Rule 21F-17 which prohibits employers “from taking measures through confidentiality, employment, severance or other type of agreements that may silence potential whistleblowers before they can reach out …

NLRB: employer unlawfully fired employee for calling supervisor a “NASTY M____ F____ER”

On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at …

The dawn of .sucks — protecting your brand

Although companies’ marketing departments likely are all over this issue, it won’t hurt their human resources directors to ponder what might happen if a few of their disgruntled former employees gets their hands on this new top level domain name.

Our colleagues at Porter Wright’s Technology Law Source blog have watched the launch of hundreds of new generic top-level domains (gTLDs) through the past several months. Introduced to increase competition in the domain name market and enhance the Internet’s stability and security, these new gTLDs are projected to change the face of the Internet and how we use it. Today, …

They’re BAAACK: Five things to consider before rehiring boomerang employees

Nathaniel S. Butler/NBAE/Getty Images & Mark Duncan/AP Images

As the NBA Season gets ready to tip off, Cleveland is certainly ready. The return of LeBron James to the Cleveland Cavaliers has riveted the sports world and reinvigorated Cleveland. But for employers, this “going home” phenomenon has prompted conversations of boomerang employees — those employees who leave an employer only to return sometime later. This article looks at this relatively-new concept, and outlines what employers should consider before re-hiring a boomerang employee.

When the question used to come up of whether to re-hire a former employee, many employers aligned with one …

The latest surge in data breaches highlight key takeaways for employers

The recent data breaches at Target, Home Depot, and Jimmy John’s have kept data privacy and security in the news lately. But from a legal perspective, there has never been much that the victims of these breaches could do to obtain a remedy in the absence of actual proof of identity or other theft. Indeed, ever since the U.S. Supreme Court decision in Clapper v. Amnesty International, it has been clear that the mere potential for future injury is insufficient to confer standing on a data breach victim to sue. Instead, the plaintiff must prove that injury is “certainly …

Circuit Courts remind employers that notice is the key in administering the FMLA!

Both the Third and Sixth Circuit Courts of Appeal issued decisions last month reminding employers that providing proper notices to employees is a key to administering the FMLA. In Wallace v. FedEx Corporation, the Sixth Circuit upheld the district court’s ruling that the employer interfered with its employee’s FMLA rights when it failed to notify her of the consequences of not turning in an FMLA leave certification. Similarly, in Lupyan v. Corinthian Colleges, Inc., the Third Circuit reversed a summary judgment finding in favor of the employer because there was a factual dispute regarding whether the employer …

NLRB reinstates food industry employees following work-related complaints

Employees today are certainly more media and marketing savvy than they were even 10 years ago, and they have more tools through which they can reach the public and each other to let their voices be heard. Two recent NLRB cases demonstrate that if employers are too aggressive in attempting to combat these employee communications, they can end up on the wrong end of an unfair labor practice finding.

In Triple Play Sports Bar & Grille, the National Labor Relation Board held that two employees had engaged in protected concerted activity under the National Labor Relations Act (“Act”) when …

The Obamacare see-saw — an opposing decision on subsidies

Some days are just more fun that others!

Just hours after the D.C. Circuit Court of Appeals issued its opinion in Halbig v. Burwell, which held that tax subsidies made available under the Affordable Care Act (“ACA”) to lower income individuals to help defray the cost of health care coverage may not be extended to individuals who reside in states that have elected not to establish their own health care exchanges, the 4th Circuit Court of Appeals today issued a unanimous decision today in King v. Burwell that upholds entitlement to tax subsidies available under the ACA for all …

Obamacare takes an unexpected hit!

A federal Court of Appeals panel in Washington, D.C. today released a decision that, if upheld, would strike down one of the main pillars of the Affordable Care Act (“ACA”) and in the minds of many observers lead to unpredictable consequences. In a 2-1 decision in Halbig v. Burwell, the three-judge federal appeals panel reversed a decision by a lower District Court judge and held that tax subsidies made available under the ACA (often referred to as Obamacare, with or without derision) to lower income individuals–generally individuals making less than $46,075 annually–to help defray the cost of health care …

Keeping up with the dot-anythings

For the past several weeks, our colleagues at Technology Law Source have been working hard to keep readers apprised of developments related to The Internet Corporation for Assigned Names and Numbers’ new generic top-level domain (gTLD) program. This program, which is essentially redefining the face of the Internet, is likely to impact any business — or, indeed, any entity — with a web presence. If you haven’t been able to keep up with the hundreds of gTLDs already delegated this year, download this hot-off-the-press e-book: Protecting Your Brand in a New gTLD World.

You also may want to subscribe …

OSHA retaliation claims could get new “teeth”

Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against employees who raise safety concerns at work or participate in OSHA enforcement activity. In recent Congressional hearings, Assistant Secretary of Labor, David Michael, proposed substantive and procedural changes for OSHA retaliation claims. If adopted, the changes could pose significant problems for companies defending against these claims.

The most concerning of the changes proposed by Mr. Michael would allow for immediate “preliminary reinstatement” of a terminated employee claiming retaliation. Depending on what standards would ultimately be imposed for obtaining this sort of preliminary relief, employers could be required to …

Are You Ready, Baby? March Madness = Workplace Madness

The NCAA men’s basketball tournament, a/k/a March Madness, kicks off Sunday, March 15 with Selection Sunday, then rolls on Tuesday, March 18 with a couple of play-in games and then on to the actual tournament, which begins Thursday, March 20. The brackets, the gambling, the office conference rooms dedicated to the games, the continual online streaming of games, the excitement…it’s all here! And with Warren Buffet recently announcing he will give $1 billion to anyone who can pick a perfect bracket, the stakes just got higher! While the Billion-Dollar Bracket may be new this year, March Madness, Super Bowl …

U.S. Supreme Court extends whistleblower protection to employees of a public company’s private contractors

Editor’s Note: This recent post from our sister blog – Federal Securities Law Blog – highlights one of the important employment law cases that the U.S. Supreme Court will address this year. As Kelly Johnson explains, the Court’s decision in Lawson v. FMR LLC extending whistleblower SOX whistleblower protection to employees of contractors and subcontractors of public companies greatly expands the scope of SOX’s reach. Indeed, the Court refused to limit its decision to private companies whose actions contributed to shareholder fraud because the requisite facts were not properly before it. As Justice Sotomoyer noted in her dissenting opinion, the

Avoid Picking Up the Pieces of a Broken Heart with a Love Contract

Valentine’s Day is drawing near. You know, that magical time of the year when bad tasting, heart-shaped confections and red roses are everywhere you look, including the workplace. Of course, an employer’s non-fraternization policy will do little to stop two adults from taking their relationship to the next level. Though office relationships on occasion may lead to good  things for the employees involved like diamond ring purchases, white weddings, and gender-neutral nursery décor, more frequently they lead to problems for employers such as claims of favoritism, reduced productivity, ethical problems, and sexual harassment claims, just to name a few.

Even …

Hunka Hunka Burning Love. How Employers Stop the Heartburn of Workplace Romances and Avoid Litigation

In honor of Valentine’s Day, we have a two-part series on workplace romance. Next week, we will have a featured post on love contracts in the workplace.  Stay tuned!

With Valentine’s Day approaching, it is a good time to remind employers that dear old Cupid is alive and well, and strutting his stuff in the workplace. I won’t bore you with the statistics about how many romantic relationships blossom in the workplace, and how many of those end up in marriage or crash and burn like the Hindenburg. As many employers already know, it is not just the parties actually …

Sometimes An Employer Just Can’t Win

In Deleon v. Kalamazoo Cnty. Road Comm’n, a split Sixth Circuit panel concluded that the district court improperly granted the employer summary judgment on the plaintiff’s discrimination claims despite the fact that the alleged adverse employment action was a transfer that the plaintiff had actively sought only nine months earlier.

Robert Deleon (“Deleon”), a 53-year-old Hispanic male of Mexican descent was employed with the Kalamazoo County Road Commission (“Commission”) for 28 years. Deleon was an “Area Superintendent” and had generally received positive reviews. When an “Equipment and Facilities Superintendent” position opened up in November 2008, Deleon applied. The working …

Oh the Weather Outside is Frightful! How Employers Can Handle the Impact of Inclement Weather (Polar Vortex Anyone?) and What NIOSH, OSHA, the NLRA and the FLSA Have to Say About It

For some, snowflakes bring thoughts of snowmen and sleigh rides. For others, they signal the beginning of closed business days, employees arriving late to work, and all sorts of other issues—all the result of inclement weather! Since many parts of the United States are currently dealing with the effects of, what-is-being-called, the “Polar Vortex,” we decided to take a look at some common headaches for employers caused by bad weather and provide you with some helpful guidance.

The National Institute for Occupational Safety and Health Addresses Cold Stress

Extreme cold temperatures have disastrous effects on humans and their ability to …