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Many states are releasing their plans to reopen businesses and lift stay-at-home orders. There are many important considerations for employers to take into account while planning their return to work. Porter Wright’s Labor & Employment Department developed a checklist of issues to consider for a safe and productive return to work. You can find that checklist here.
Continue Reading COVID-19 return to work considerations: Navigating the reopening process

microphone at podiumFederal regulation of employee non-compete agreements will be the focus of a workshop hosted by the Federal Trade Commission (FTC) Thursday, Jan. 9, 2020, in Washington, DC. First announced by the FTC on Dec. 5, 2019, the purpose of the workshop is “to examine whether there is a sufficient legal basis and empirical economic support to promulgate a Commission Rule that would restrict the use of non-compete clauses in employer-employee employment contracts.”

The FTC has now released the agenda for the workshop, which is titled “Non-Compete Clauses in the Workplace: Examining Antitrust and Consumer Protection Issues” and will be webcast live. Among the topics that will be addressed by the speakers and panelists – which include mostly law professors, economists and policy analysts, and only one practicing attorney – are the economic effects of non-competes, the FTC’s authority to address non-competes and whether the FTC should initiate a rulemaking regarding non-competes. The FTC has released the following list of questions that will be addressed at the workshop, and on which the FTC is soliciting public comment through Feb. 10, 2020:
Continue Reading FTC poised to consider regulation of non-competes

With multiple avenues for expanding a family and a plethora of different family models, employers would be wise to re-consider their parental leave policies to suit the needs of the modern family.

In May, a large multi-national corporation settled a class action lawsuit regarding its parental leave policy for $5 million. As written, the employer’s policy gave its employees who were primary care-givers 16 weeks of paid leave, and gave its employees who were non-primary care-givers only 2 weeks of paid leave. According to the lawsuit, the employer had an unwritten policy that made it almost impossible for men to qualify as a primary caregiver unless the birth mother was unable to care for the baby because she was medically incapable or because she was back at work. Such a policy, even if unwritten, could violate federal and state laws that prohibit employers from making employment decisions on the basis of sex.
Continue Reading Employers should review their parental leave policies in wake of parental leave class action settlement

When did canned web-based presentations become the norm for harassment, discrimination and other inappropriate workplace conduct training? Companies who rely on pre-prepared, generic materials often find those trainings for HR, management, supervisors and employees to be ineffective, particularly now that #MeToo is a part of our vocabulary. For the employer who has the goal of…

Nationwide, many states are amending their employment laws to address the uncertainty of the joint employment doctrine under federal law, as evidenced by the apparent conflict between the recent D.C. Circuit decision in Browning-Ferris Industries of California Inc. v. National Labor Relations Board and the Board’s proposed rules on the subject. In an effort to…

In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.

On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.”
Continue Reading Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs

On Aug. 15, 2018, the Sixth Circuit in Gaffers v. Kelly Services, Inc. held that the Fair Labor Standards Act (FLSA) does not render an arbitration agreement that requires claims to be brought individually illegal and unenforceable. Following the Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, which held that a federal statute does not displace the Arbitration Act unless it includes a “clear and manifest” congressional intent to make individual arbitration agreements unenforceable, the court rejected the plaintiff’s arguments that FLSA displaced the Federal Arbitration Act simply by providing for a right to “collective action.” Instead, the Sixth Circuit, consistent with Epic, held that the FLSA “gives employees the option to bring their claims together. It does not require employees to vindicate their rights in a collective action, and it does not say that agreements requiring on-on-one arbitration become a nullity if an employee decides that he wants to sue collectively after signing one.” The Sixth Circuit then went on to reject the plaintiff’s next argument that the Arbitration Act’s savings clause permitted the court to refuse to enforce the individual arbitration agreements because they are “illegal” under the FLSA based on Epic.
Continue Reading Sixth Circuit upholds agreement to arbitrate FLSA claims on individual basis

Agreeing with the district court’s assessment that “résumé misrepresentations by a senior human resources professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline,” the 6th Circuit on April 23, 2018, rejected an appeal from a summary judgment order on claims of pregnancy, race, and age discrimination and retaliation in Bailey v. Oakwood Healthcare, Inc..

Michelle Bailey, a 40 year old African-American woman, was fired from her position as a senior staffing professional at Oakwood Healthcare, Inc. (Oakwood) on the day she returned from a three-month maternity leave. During her maternity leave, her supervisor had identified deficiencies in her work performance that prompted the supervisor to go back and review her qualifications. When she checked, she found what Ms. Bailey acknowledged in deposition were “embellishments” on her employment application. In notifying Ms. Bailey of her termination, Oakwood relied on both the deficiencies and the misrepresentations. Ms. Bailey later sued, claiming that she was fired because of her pregnancy, her race and her age as well as in retaliation for concerns she had expressed about the rejection of employment applications of certain African-American candidates for employment at Oakwood prior to her maternity leave. The district court granted summary judgment in Oakwood’s favor on each of these counts.
Continue Reading Sixth Circuit upholds termination of human resources employee for employment application misrepresentations and performance deficiencies

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced a new nationwide pilot program, called the Payroll Audit Independent Determination (PAID) program, which is designed to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the WHD’s website describing the program, the program’s primary objectives are to resolve wage and hour claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations and to ensure that more employees promptly receive any owed back wages.

WHD states that it will implement this pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, as well as potential modifications to the program to determine its next steps.
Continue Reading Wage and Hour Division announces pilot limited “amnesty” program