December 2013

The Family and Medical Leave Act (FMLA) prohibits more than just retaliation — it also prohibits interference. More specifically, the FMLA provides: “it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA and interference claims arise when an employer’s actions prevent or interfere with an eligible employee’s rights under the FMLA. 29 USC § 2615.

Two recent Ohio district court cases highlight just how important it is for employers to keep the interference provision in mind when navigating employee FMLA requests.
Continue Reading Two Ohio Cases Highlight That When It Comes to the FMLA, Employers Need to Set Their Radars to Detect Potential Interference Claims

Yesterday, the Sixth Circuit revived the Equal Employment Opportunity Commission (EEOC)’s lawsuit against Skanska USA Building, Inc., holding that it was the de facto employer for subcontracted employees, a decision with potentially broad-reaching implications for employers with subcontracted employees and independent contractors, particularly in the construction industry.
Continue Reading Sixth Circuit Holds that Subcontracted Employees Can Sue the General Contractor on Construction Project as Their De Facto Employer

Come Jan. 1, 2014, the federal minimum wage rate will remain at $7.25 per hour for non-tipped employees, and $2.13 per hour for tipped employees. As of Jan. 1, 2013, 19 states and the District of Columbia had minimum wage rates higher than the federal minimum wage rate. In 2014, not only will that number grow to 20 states, but a number will see their minimum wage rates increase further.
Continue Reading State Minimum Wage Increases for 2014

One of the most significant risks to business in recent years has been the proliferation of class action employment-related lawsuits. Class action claims have been especially popular with plaintiff’s lawyers pursuing federal Fair Labor Standards Act wage claims. A class action lawsuit can mean huge costs for defense and damages. Some employers have attempted to manage the risk by having employees sign agreements requiring that they pursue employment law claims against the company in arbitration, rather than in court. Sometimes employers include in the arbitration agreement a specific waiver of the right to pursue class action claims in court or in arbitration.
Continue Reading Fifth Circuit Court of Appeals Knocks Down NLRB Decision: And, in Doing So, Supports Employer Effort to Avoid Class Action Claims

I have to admit that I generally love it when a federal court judge begins an opinion with a flourish like this: “December 20, 2011, was defining day for Appellant Angela Powell-Pickett.” Almost made me think of Dickens’ “It was the best of times, it was the worst of times…” (OK, maybe not quite.) But I knew from that first line in the court’s opinion in Angela Powell-Pickett v. A.K Steel Corporation would be a good one. And I wasn’t disappointed.
Continue Reading Sixth Circuit Does Not Permit Amnesiac Plaintiff to Revive Memory Via Contradictory Affidavit

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

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, especially when those comments concern workplace issues, and even more so when they make allegations of workplace misconduct. Debord v. Mercy Health System of Kansas, Inc., Nos. 12-3072 and 12-3109 (10th Cir. Nov. 26, 2013) is a case that demonstrates just how an employee may feel 10 feet tall and bulletproof sitting at a computer keyboard, but whose tone changes when the repercussions from a social media post become all too real.
Continue Reading When an Employee’s 10-Foot-Tall and Bulletproof Attitude on Social Media Becomes a Workplace Reality (and Nightmare)