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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 …

Fantasy sport issues in the workplace

As we enter football season, workforces should prepare for the estimated 25 million fantasy sports enthusiasts who spend at least an hour of work time managing their teams each week during the 13- to 17-week football season. (See more here.)  Distracted employees can reduce productivity, cause workplace accidents, and potentially impact the bottom line. As such, employers that are concerned with such productivity issues should put proper procedures in place to address these issues head on.

The first question of course, however, is are fantasy football leagues even legal? On the federal level, the Unlawful Internet Gambling Enforcement Act …

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

Workers’ compensation and summer outings

Summertime brings company picnics, charity walks and softball leagues. Great moments for increasing employee morale, but these activities may lead to employer liability if an employee is injured while participating in such activities.

In Ohio, employees injured while engaged in an employer-sponsored recreational or fitness activity are entitled to workers’ compensation benefits unless the employee signed a waiver prior to participating in the activity. Hence, it is critical employers request employees execute a waiver before an activity occurs. The BWC provides a sample waiver on its website.

For the waiver to be valid, the following requirements must be met:…

Hiring minors: Not my teenage dream

It is summer, and you know what that means: teenagers, everywhere. And they are not just hanging out at the mall, they are working at the mall, at the local pool, and in other entry-level positions. Unlike other workers, however, teenagers come with their own special set of complications. Generational issues aside, the real concern for employers with employment of minors is complying with federal and state laws specific to employment of minors.

Hiring

Before hiring minors, each employer should verify whether it can hire minor employees in the industry in which the employer operates and the state in which …

Summer dress codes: The long and skorts of it

For many, summer is a more laid-back time of year and rightfully so. There are summer holidays for people to enjoy, vacations, long weekends, lazy days outside taking advantage of the nice weather and, in the employment law area, many law-making and law-enforcing bodies are less active or not in session. Sometimes this laid-back attitude seeps into the workplace. Specifically, during these hot, sticky summer months, employers often notice employees start taking a relaxed approach the office dress code. It makes sense; the rising temperatures make some people reach for shorter hemlines or lighter-weight fabrics. Many times this can be …

Managing religious holidays

Federal and state laws prohibit discrimination and/or harassment on the basis of religion. This means that an employer cannot treat persons of different religions differently or appear to favor one religion over another. As such, employers should be mindful of varying cultural differences among their employees. While their are not as many religious holidays during the summer months, during 2015, the month of Ramadan is celebrated by Muslims from June 17 – July 16.  During this period, Muslims must fast between sunrise and sunset. Keeping that in mind, the following tips may serve as helpful reminders to employers:

  • Keep décor

Hiring seasonal workers during the summer

One issue that comes up for many employers in the summer is hiring seasonal workers. Hiring temporary seasonal employees presents some substantial legal traps for the unwary. Employers should assess their seasonal hiring practices to ensure compliance with various state and federal laws. In other posts, we advised you on the issues in hiring interns and minors, but here are some other issues employers should look out for when hiring seasonal workers:

  • Verify employees are legally permitted to work in the U.S.
  • Make sure you are following the rules when classifying a seasonal worker as an “independent contractor” versus an

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 …

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, …

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

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! 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 Health Addresses Cold Stress

Extreme cold temperatures can have disastrous effects on humans and their ability to work well. The National Institute for Occupational Safety and Health (NIOSH) has put together a good …

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

Flu season: guidance for employers

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 ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

  1. Encourage workers who are sick to stay home

Hiring seasonal workers during the holidays

Many employers hire seasonal workers during the holidays to help keep up with increased consumer demand. However, hiring temporary seasonal employees presents some substantial legal traps for the unwary. Employers should assess their seasonal hiring practices to ensure compliance with various state and federal laws. In other posts, we advised you on the issues in hiring interns and minors, but here are some other issues employers should look out for when hiring seasonal workers:

  • Verify employees are legally permitted to work in the U.S.
  • Make sure you are following the rules when classifying a seasonal worker as an “independent contractor”

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 …

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 …

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