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OFCCP publishes final rules on sex discrimination for federal contractors

As we reported last year, the Office of Federal Contract Compliance Programs (OFCCP) planned to issue a Final Rule updating its sex discrimination regulations for federal contractors and subcontractors for the first time since the 1970s. In doing so, sex discrimination prohibitions for federal contractors have been modernized to include discrimination on the bases of sex, pregnancy, childbirth, pregnancy-related medical conditions, gender identity, transgender status and sex stereotyping. Notably, sexual orientation was excluded from the definition.

The Final Rule amends regulations implementing Executive Order 11246, which prohibits discrimination by federal contractors on sever bases, including sex. The Final Rule …

Ohio’s new law legalizing medical marijuana includes key exceptions for employers

A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 …

Updated Affirmative Action thresholds

Federal Acquisition Regulatory Council (FAR) has updated the jurisdictional thresholds for coverage under affirmative action laws for federal contractors and subcontractors. The regulations have not been amended, but an inflationary adjustment statute applicable to the Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) regulations allows the FAR to adjust the jurisdictional thresholds periodically for inflation. The Section 503 basic coverage threshold was increased from $10,000 to $15,000, and the VEVRAA basic coverage threshold was increased from $100,000 to $150,000. This could result in some contractors and subcontractors …

The focus of the ADA turns to websites in the digital age: Is your site compliant?

Americans with Disabilities Act compliance can take you beyond workplace and employment issues. If you operate a business accessible to the public then the ADA public accommodation rules are important to you as well. That can mean more than just making sure your physical facilities are accessible. If you maintain a website for use by customers, such as for online shopping, have you considered whether your website is accessible to persons with disabilities? Our colleagues wrote on the Technology Law Source blog about how you can make sure your site is compliant. We definitely think it’s a worth-while read …

Proposed Ohio Senate bill would permit workers’ compensation benefits for emergency personnel With PTSD

Ohio Senators have introduced a bill to change Ohio workers’ compensation laws to permit claimants who are peace officers, firefighters or emergency medical personnel diagnosed with post-traumatic stress disorder (“PTSD”) to obtain workers’ compensation benefits.

Presently, Ohio law only recognizes claims for psychological conditions if the psychological condition arises out of an injury or occupational disease or is the result of sexual assault. As we have previously reported on this blog, the Ohio Supreme Court, in the Armstrong v. John R. Jurgenson Comp., et al., case explicitly determined that compensable psychological conditions must arise out of the claimant’s physical …

Court revives FLSA claims of independent contractor

The Court of Appeals for the Sixth Circuit ruled last week in Keller v. Miri Microsystems that a technician who installed satellite dishes is entitled to a jury trial on the issue of whether he was improperly classified as an independent contractor and therefore entitled to overtime pay. Michael Keller argued that he was not an independent contractor of Miri Microsystems, LLC, a satellite-internet-dish installation company, but, rather, was an employee who should have been compensated in a manner consistent with the requirements of the Fair Labor Standards Act (FLSA). Keller, who claims to have worked 19 hours a day, …

Why can’t we be friends? Gawker class action raises specter of notification via social media

Attorneys for FLSA class-action defendant Gawker are opposing plaintiffs’ request to expand potential avenues of class notification via social media. Former interns of the blog site Gawker, a website that promotes itself as a “one-stop guide to media and pop culture,” filed a Fair Labor Standards Act class action against the company in June of last year. Mark v. Gawker Media LLC (S.D.N.Y.). The former interns allege that they were not paid for hours of work writing, researching, editing, and lodging stories and multimedia content that “was central to Gawker’s business model as an Internet publisher.” They also allege …

OFCCP issues proposed updated rules on sex discrimination for federal contractors

OFCCP issued proposed updated rules on sex discrimination for federal contractors covered by EO 11246. They will be officially published tomorrow. Contractors and interested parties can submit comments until March 31, 2015.

The proposed rules largely align with the obligations already imposed by Title VII of the Civil Rights Act, which applies to most employers, and the Pregnancy Discrimination Act. According to OFCCP, the highlights of the changes are that they will:

  • Clarify that adverse treatment of an employee because of gender-stereotyped assumptions relating to family caretaking responsibilities is discrimination.
  • Clarify that leave for childcare must be available to men

Ohio Appellate Court Decision reminds employers to think twice before they terminate the thorn in their side!

Relying on Ohio’s public policy favoring workplace safety, the Tenth District Court of Appeals in Blackburn v. American Dental Centers, et al. recently concluded that evidence that employees were terminated for complaining about work conditions and practices that were unsafe to both the employees and patients of a dental office may support a claim of wrongful discharge in violation that public policy.

Facts

Heather Esposito began working for American Dental Centers (“ADC”) in 1989 as a dental hygienist, and Barbara Blackburn began working for ADC in 2001 as a dental assistant. Dr. Sherman Allen joined the practice in June …

NLRB begins its “purple” reign: Board holds employers must permit employee use of company email systems for union organizing

In a decision issued yesterday, the National Labor Relations Board opened the door for employees to use company email to send messages encouraging co-workers to unionize. In Purple Communications, Inc., the Board reversed what had been the law for the past 7 years. In its 2007 Register Guard decision, the Board had allowed companies to prohibit employee use of company email to solicit support for any cause, including union organizing. Reversing course in Purple Communications, the Board now holds that companies must permit the use of company email for solicitation, at least during non-working time, which is generally …

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 …

Appellate Court throws exemptions to minimum wage laws in Ohio out the window

A divided Montgomery County Court of Appeals has determined that the Ohio minimum wage statute unconstitutionally restricted the definition of “employee” in the Ohio constitution and declared the law invalid, thereby eliminating exemptions to Ohio’s minimum wage laws.

John Haight and Christopher Pence were employed as advertising salespeople for Cheap Escape Company dba JB Dollar Stretcher, which published a coupon magazine and website for electronic coupons, and were paid mostly through commissions. In 2012, Haight and Pence sued Cheap Escape alleging they were employees of Cheap Escape and that the company failed to pay them minimum wages each week. Cheap …

Federal court finds employer may be liable under the ADA for employee’s snarky Facebook comments about another employee’s medical condition

In Shoun v. Best Formed Plastics, Inc., a federal judge held that an employer may be liable for an employee’s snarky Facebook comments about another employee’s medical condition. This case serves as a good reminder to employers and employees alike of the importance of preserving the confidentiality of employee medical information.

Factual background

George Shoun, an employee at Best Formed Plastics, suffered a workplace injury and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s compensation claim and monitored his medical treatment for the company. In doing so, she learned the nature and …

Introducing our mobile-device friendly microsite – the Employer Law Forecast

In this first week of Summer, we are excited to let our blog readers be among the first to know about our launch of a new microsite – Employer Law Forecast, a new way to deliver insightful legal content to readers.

The Employer Law Forecast is an online tool that helps employers and human resource professionals plan for employment law issues that occur seasonally.  For example, as we kick off summer, we help you address common workforce issues during the summer months, including Managing the Heat for Employees, Hiring Interns, Workers’ Compensation and Summer Outings, Hiring

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 …

Employers can learn from recent cases involving the Federal Trade Commission

Two recent decisions – one from the federal district court in New Jersey and one from a federal Administrative Law Judge – potentially will have significant impact on the Federal Trade Commission’s (“FTC”) enforcement of business’s data security obligations.

FTC v. Wyndam Worldwide

In FTC v. Wyndham Worldwide Corporation, the New Jersey federal district court upheld the FTC’s authority to find that a business that has sustained a data breach has committed an “unfair trade practice” in violation of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. §45(a) when its privacy controls are found to be inadequate.  …

NLRB’s opposition towards broad social media and other employer policies keeps popping up

Does your handbook or social media policy say something like this:

“If you comment about the Company on the Internet, you must say that your views are not those of the Company.”

 “Do not use the Company’s logo or other trademarks on social media.”

 “You may not discuss the Company’s confidential business plans on the internet.”

Do you think these restrictions pass muster under National Labor Relations Board decisions?

Employer efforts to craft social media and other handbook policies to comply with recent NLRB cases and guidance is a little like playing whac-a-mole. No matter how many you smack down, …

Tech companies can’t escape antitrust liability for agreeing not to solicit competitors’ employees

Sometimes, the worlds of antitrust law and employment law intersect. For example, as most businesses know, it is generally permissible under federal, state, and local law for employers to enter into non-recruitment or non-competition agreements with their employees that are reasonably tailored to prevent unfair competition. A non-recruitment agreement typically prohibits an employee from stealing co-workers for another company. Similarly, a non-competition agreement typically prohibits an employee from working for the employer’s competitor both during employment and for a reasonable period of time thereafter. What happens, however, when employers simply bypass these employee agreements and instead enter into agreements with …

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 …

Prepare for the H-1B Cap: Filing Season Begins April 1, 2014

Spring is right around the corner, so we’d like to remind our clients, especially U.S. employers, to begin considering filing H-1B petitions for prospective new foreign national employees.  These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2014 for employment beginning no earlier than October 1, 2014 (this is the beginning of the government’s 2015 fiscal year, which runs from October 1, 2014 to September 30, 2015).  The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least …

Three Additions to Your New Year’s Resolutions from Pradaxa

Editor’s Note:  Often there are important lessons learned for employers that come from seemingly unrelated cases.  This post from our sister blog – Technology Law Source – highlights important e-discovery tips from Peggy Koesel and Tracey Turnbull. Even though this case is a products liability case, as Peggy and Tracey explain, the takeaways as they relate to e-discovery are universal and are very much worth sharing here. 

Many people use the start of a new year to resolve to improve their diet, get more sleep and exercise more. Professional resolutions for attorneys often focus on improving efficiency, expanding networks and …

Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful Exceptions for Employer Background Checks and Workplace Investigations

It should be old hat by now: Employers who use a third party to conduct a background check on an applicant or employee for employment purposes must comply with the Fair Credit Reporting Act (FCRA). But what many employers do not know, or may have forgotten, is that the Fair and Accurate Credit Transactions Act (FACTA) also imposes upon them some obligations when conducting a background investigation. (A background of the FCRA’s general requirements for employers is necessary to understand the FACTA’s implications, which we have outlined for you here.)

So what is the FACTA? As of December 4, …

When an Employee’s 10-Foot-Tall and Bulletproof Attitude on Social Media Becomes a Workplace Reality (and Nightmare)

It’s hard to believe that what someone says on social media may not be the whole truth and nothing but the truth. The truth is, people are more likely to say things on social media sites, like Facebook and Twitter, that they would never say to or about a person directly because the computer gives people a false impression that they can say or do whatever they want without repercussion. But as we have warned time and time again, comments made on social media sites may not be as private as the commenter may believe and can be very damaging, …

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