Employer Law Report

Monthly Archives: December 2011

NLRB Postpones Effective Date for Posting Again

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s says it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012. A copy of the NLRB’s very brief Press Release can be accessed here.

Refresher on Alcohol Testing and the ADA

Many employers may be surprised to learn that the ADA’s prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.

Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs’ enforcement guidance considers "blood, urine, and breath analyses to check for alcohol use" to be a medical examination under the ADA. Case law is sparse, but courts have generally followed the EEOC guidance.

So, if employers want to ensure their workers aren’t under the influence of …

Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet’s Disability Discrimination Case

The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.

James McKelvey, an Army veteran who lost his right hand and suffered other serious injuries while trying to defuse a roadside bomb in Iraq in February 2004, returned to work at the Detroit Arsenal where he claimed his supervisors and co-workers at the armory constantly harassed him by calling him "cripple," and "worthless," and not assigning him an equal workload. McKelvey …

FLSA Hot Topic: The Fluctuating Workweek and Commission Pay

We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.

The fluctuating workweek method is permitted by FLSA regulation 29 C.F.R. § 778.114, promulgated by the Department of Labor to implement the Supreme Court’s holding in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 …

EEOC’s Informal Discussion Letter Merits Re-Evaluation of High School Diploma Requirements

Employers frequently require a high school diploma as a condition of employment. Employers not only look to hire individuals who possess basic skills in reading, writing and math, but also believe that having a high school diploma demonstrates a level of maturity and perseverance.

That requirement seems reasonable — except when it "screens out" individuals based on their protected status. For instance, the EEOC has long taken the position, upheld by the courts, that high school diploma requirements have an adverse impact on minorities and therefore can be used only when a high school diploma can be shown to be …

The New Year Brings New Notice Requirements for Employers in California

Ohio employers with multi-state operations will want to know that several states and local governments have recently considered or enacted "wage theft" legislation to include the criminal and increased civil penalties and fines for employers who underpay their workers. The inclusion of notice requirements in California and New York create additional consequences for the unwary employer.


Additional notice, recordkeeping requirements, and increased penalties for wage and hour violations are the highlights of California’s Wage Theft Protection Act, which will take effect on January 1, 2012. It makes the following changes to California wage and hour law for private employers:…

Update: NLRB Votes on “Quickie Election” Rules

As we reported last week, on November 18th, the NLRB announced that it would vote on "whether to adopt a small number of the amendments to its election procedures that it had proposed earlier this year." Yesterday, the Board moved forward with that vote. Predictably, the two Democratic Board members voted in favor of the amendments while Republican appointee, Brian Hayes dissented. Member Hayes had threatened to resign from the Board in order to block the vote from going through, but ultimately decided not to do that.

The controversial NLRB proposed rule includes various measures that would significantly shorten …

Supreme Court to Decide Whether Pharmaceutical Sales Reps Fall within FLSA Outside Sales Exemption

Employers are closer to a nation-wide rule on the appropriate classification of pharmaceutical sales representatives (PSRs). On Monday, the Supreme Court granted cert to resolve a split between the Ninth and Second Circuits on whether PSRs are covered by the outside sales exemption of the Fair Labor Standards Act (FLSA).

In February, we covered the Ninth Circuit’s decision in Christopher et al. v. SmithKline Beecham Corp., where it held that GlaxoSmithKline’s PSRs were properly classified as exempt. In that decision, the Ninth Circuit disagreed with the Second Circuit, which in 2010 held such employees to be non-exempt in In