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New CDL rule offers smoother transition to civilian careers for veterans and opportunity to address driver shortage in transportation industry

The American Trucking Association (ATA) estimates that the for-hire trucking industry faced a driver shortage of nearly 48,000 drivers at the close of 2015. The effects of this shortage can be felt across nearly every sector of the U.S. economy with roughly 70 percent of all freight moving by truck. Industry advocates have noted that even a modest improvement in the economy could increase freight volumes and further exacerbate the shortage.…

OSHA retaliation rules are going forward

On Monday, a federal judge in Texas refused to issue an injunction stopping OSHA from enforcing certain aspects of controversial “non-retaliation” rules. We reported on the proposed OSHA rules on Oct. 27, 2016. Briefly, the most controversial aspects of the rule are on two points:

  1. The rule would effectively prohibit incentive programs under which bonuses or other rewards are conditioned, at least in part, on the frequency of reported injuries. OSHA says that programs like that are a disincentive to reporting injuries.
  2. OSHA takes the position that drug testing programs that call for drug or alcohol testing automatically after an

Decision on whether to block DOL salary basis increase to $47,476 per year expected by Nov. 22

After a hearing in the Eastern District of Texas on a lawsuit by 21 states to enjoin the Department of Labor’s scheduled increase of the minimum salary level for exempt status under the Fair Labor Standards Act (FLSA), the federal judge hearing the case indicated that he will rule by Nov. 22, 2016. As you know, the rule is set to go into effect on Dec. 1, 2016. For those exempt employees with salaries below $47,476, many employers are weighing whether to implement salary increases up to the new threshold or convert the employees to non-exempt status. Non-exempt status would …

Hidden anti-retaliation provisions in OSHA’s electronic reporting rule: How are incentive programs and drug testing policies affected?

In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and later pushed back to Nov. 1, 2016. A lawsuit has been filed in the Northern District of Texas that could result in the anti-retaliation rules being delayed further …

Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be …

OSHA issues final rule requiring electronic submission of workplace illness and injury logs

On May 11, 2016, OSHA issued a final rule requiring electronic reporting of illnesses and injuries. The new rules apply to establishments with 250 or more employees. The rules require electronic submission of the 2016 OSHA form 300A summary report by July 1, 2017, and the 2017 300 log, 300A summary and 301 incident report for 2017 by July 1, 2018. In each subsequent year, all reports for every establishment must be submitted by March 2 of the following year. The new rules also require employers in high-risk industries (construction, manufacturing, furniture stores, waste collection and nursing care facilities) with …

EEOC issues guidance directed specifically to HIV positive employees and their physicians

Whether the U.S. Equal Employment Opportunity Commission is taking advantage of the fact that HIV infection has been in the news lately (thanks to Charlie Sheen’s recent disclosure about his own HIV status) or the timing is pure coincidence, the EEOC earlier this month issued two publications regarding the rights afforded by the Americans with Disabilities Act to job applicants and employees living with HIV. Although the EEOC previously issued a more general guidance about the ADA’s protections for individuals with HIV/AIDS in 2012, these two new publications are notable in that they are specifically directed to HIV positive applicants …

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;

New app allows consumers to buy based on which companies are female-friendly

Thanks to Summer Associate Christopher Hawthorne for his assistance with this blog entry.

In an era of consumers making choices based on whether companies have ethical labor and sourcing practices, a new app now tracks how female friendly a company is. “Buy Up Index,” reveals whether a company’s workplace policies and practices accommodate and empower its female employees. Through this app, consumers no longer have to rely on the company’s public persona.

The app uses four criteria—women employees, women’s leadership, corporate citizenship, and marketing—to create an overall score that grades the company’s treatment of its female employees. Employers are graded …

Employment law and recent events: Confederate flag unrest

Thanks to Porter Wright Summer Associate Carolyn Alford for her assistance in preparing this blog post.

The recent tragedy in South Carolina, where a reputed white supremacist opened fire on a crowd of Black churchgoers, has propelled the Confederate flag as a symbol of racism back into the public spotlight, after a picture surfaced of the shooter posing with a gun in front of a Confederate flag. The attention the Confederate flag has received nationwide will no doubt be reflected in the workplace as well. But what are an employer’s responsibilities when an employee or manager wants to display the …

U.S. Supreme Court decision on same-sex marriage – workplace implications

The United States Supreme Court decision in Obergefell v. Hodges  requiring that all states recognize same-sex marriages is one of the more significant constitutional law decisions from the Court in many years. The impact of the decision extends in some ways to the workplace and to the day-to-day responsibilities of human resource and benefits professionals.

Of course, the immediate impact is the legalization of same-sex marriages in all states, regardless of where the marriage was performed. That means that all spousal privileges associated with employment must be extended to same-sex married couples. Examples include:

  • FMLA: Time off to care for

Sixth Circuit in EEOC v. Ford: Sometimes showing up really is an essential function of the job

Almost a year ago, we wrote that a panel of the Sixth Circuit in EEOC v. Ford Motor Company, bucking the trend elsewhere, had held that an employer could be required to permit an employee to work from home as a reasonable accommodation for a disability. Last week, however, the entire Sixth Circuit, in an 8-5 decision, issued an opinion overturning the panel’s decision and finding that in-person attendance at the work site is generally an essential function of most jobs, particularly those that are interactive. The court recognized that advances in technology may mean that regular on-site …

Big data in the workplace

I’m looking forward to joining my colleagues Dennis Hirsch and Jay Levine for a roundtable discussion of “Big data, data analytics and the law: What your company needs to know about the next big thing” on May 13. Here is a glimpse into what I plan to talk about from the employment lawyer’s perspective:

Even if we don’t know exactly how big data works, we know what it can do for us in our daily lives. Movie suggestions on Netflix. Targeted coupons at the grocery store. Cheap airfare and hotel rates. Facebook suggestions of people we may know. There is …

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, …

NLRB general counsel guidance memo on employee handbook policies is required reading for all employers

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04, which he intended to bring some clarity to the NLRB’s sweeping enforcement effort against employee handbook policies his office has deemed to be overbroad and infringing on workers’ Section 7 rights. All employers, particularly those that are not unionized, should take this 30-page memo in hand and compare it to their own employee handbooks to see if any of their policies  might be considered illegal by the NLRB.

The memorandum is split into two parts. In the first part, it compares policies found to …

Managing Inclement Weather

Looking for more articles on seasonal workplace issues?  Check the Forecast here. Our Employer Law Forecast covers relevant seasonal issues to help you more effectively manage your workforce.

Man scraping ice off car

For some, the first snowflakes of Winter 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! This post takes a look at some of the common headaches that bad weather causes for employers and how to best deal with them.

The National Institute for Occupational Safety and

Flu season: guidance for employers

Flu Season - iStock_000015547443Small

Looking for more articles on seasonal workplace issues?  Check the Forecast here. Our Employer Law Forecast covers relevant seasonal issues to help you more effectively manage your workforce.

 

 

As the weather turns colder, concerns about the flu resurface. With many reports that this year’s flu vaccine is less effective than usual, flu season figures to be worse than ever. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at: Make It Your Business to Fight the Flu: A Toolkit for Businesses and Employers. Employers should be …

Confused or overwhelmed about the new obligations and regulatory activity related to federal contractors? – You aren’t alone

The Office of Federal Contacts Compliance Programs (OFCCP) has been very busy changing the rules for federal contractors and subcontractors. There are 8 new developments from the second half of 2014 that all covered contractors should be aware of:

  1. Final rule prohibiting discrimination against sexual orientation and gender identity for federal contractors subject to Executive Order 11246.
  2. New scheduling letter released requiring submission of data regarding veterans, disabled persons, compensation, and other items not previously required.
  3. New form for annual submissions about veterans to be used beginning in 2015 (replaces VETS-100A and VETS-100).
  4.  Proposed rule to prohibit federal contractors from

Ohio Appellate Court upholds employee termination for Facebook threats

A recent Ohio appellate court decision highlights how an employer’s response to employee threats of violence made on social media sites can impact a court’s decision when the employee challenges their termination. In Ames v. Ohio Dept. of Rehabilitation and Correction, the plaintiff was employed by ODRC as a Senior Parole Officer. In 2009, after the plaintiff returned from a medical leave of absence due to depression and anxiety, her co-workers and supervisors began noticing what they described as a pattern of interpersonal conflicts, erratic behavior, and emotional outbursts at work. Later that year, while discussing her work situation …

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 …

OSHA modifies rules for reporting of severe injuries and fatalities – updates exemptions from record-keeping requirements

Recently, the federal Occupational Safety and Health Administration (OSHA) announced a final rule changing requirements for reporting severe injuries and fatalities. The rule also modifies OSHA’s exemptions from its record-keeping requirements. The new rule takes effect January 1, 2015.

In most circumstances, there is no obligation to notify OSHA when there is an injury or illness incurred at work. Employers are required to log work-related injuries and illnesses on OSHA forms. OSHA does inspect those logs when they conduct workplace investigations. But, in most cases there is no general obligation to notify OSHA when an employee becomes ill or injured …

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 …

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