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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 …

They’re BAAACK: Five things to consider before rehiring boomerang employees

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 school of thinking: “If you thought the grass …

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 …

Are You Ready, Baby? March Madness = Workplace Madness

The NCAA men’s basketball tournament, a/k/a March Madness, kicks off Sunday, March 15 with Selection Sunday, then rolls on Tuesday, March 18 with a couple of play-in games and then on to the actual tournament, which begins Thursday, March 20. The brackets, the gambling, the office conference rooms dedicated to the games, the continual online streaming of games, the excitement…it’s all here! And with Warren Buffet recently announcing he will give $1 billion to anyone who can pick a perfect bracket, the stakes just got higher! While the Billion-Dollar Bracket may be new this year, March Madness, Super Bowl …

U.S. Supreme Court extends whistleblower protection to employees of a public company’s private contractors

Editor’s Note: This recent post from our sister blog – Federal Securities Law Blog – highlights one of the important employment law cases that the U.S. Supreme Court will address this year. As Kelly Johnson explains, the Court’s decision in Lawson v. FMR LLC extending whistleblower SOX whistleblower protection to employees of contractors and subcontractors of public companies greatly expands the scope of SOX’s reach. Indeed, the Court refused to limit its decision to private companies whose actions contributed to shareholder fraud because the requisite facts were not properly before it. As Justice Sotomoyer noted in her dissenting opinion, the

President Obama Signs Executive Order Requiring $10.10 Minimum Wage for Federal Contractors

As we reported was likely to occur, President Obama signed an Executive Order yesterday requiring federal contractors to pay their employees at least $10.10 per hour beginning January 1, 2015.  The minimum wage only applies to new federal contracts and contracts renewed by the federal government after January 1, 2015.  However, the Executive Order states that “for all new contracts . . . negotiated between the date of this order and the effective date[] . . . , agencies are strongly encouraged to take all steps that are reasonable and legally permissible to ensure that individuals working pursuant to …

Avoid Picking Up the Pieces of a Broken Heart with a Love Contract

Valentine’s Day is drawing near. You know, that magical time of the year when bad tasting, heart-shaped confections and red roses are everywhere you look, including the workplace. Of course, an employer’s non-fraternization policy will do little to stop two adults from taking their relationship to the next level. Though office relationships on occasion may lead to good  things for the employees involved like diamond ring purchases, white weddings, and gender-neutral nursery décor, more frequently they lead to problems for employers such as claims of favoritism, reduced productivity, ethical problems, and sexual harassment claims, just to name a few.

Even …

Hunka Hunka Burning Love. How Employers Stop the Heartburn of Workplace Romances and Avoid Litigation

In honor of Valentine’s Day, we have a two-part series on workplace romance. Next week, we will have a featured post on love contracts in the workplace.  Stay tuned!

With Valentine’s Day approaching, it is a good time to remind employers that dear old Cupid is alive and well, and strutting his stuff in the workplace. I won’t bore you with the statistics about how many romantic relationships blossom in the workplace, and how many of those end up in marriage or crash and burn like the Hindenburg. As many employers already know, it is not just the parties actually …

Updates for Federal Contractors: New Minimum Wage Coming Soon; New Required Form for Self-Identification of Disability Published by OFCCP.

Those of you who watched President Obama’s State of the Union Address know he announced that he will establish by Executive Order a minimum wage of $10.10 for all federal contractors and subcontractors. A proposal backed by the White House is currently pending in Congress to raise the federal minimum wage for all employers from $7.25 to $10.10.  There is strong opposition to the proposed law. The President’s anticipated Executive Order does not need Congressional approval because it will not impact all employers, just those who have federal contracts or subcontracts. Until a draft Executive Order is proposed, we will …

Three Additions to Your New Year’s Resolutions from Pradaxa

Editor’s Note:  Often there are important lessons learned for employers that come from seemingly unrelated cases.  This post from our sister blog – Technology Law Source – highlights important e-discovery tips from Peggy Koesel and Tracey Turnbull. Even though this case is a products liability case, as Peggy and Tracey explain, the takeaways as they relate to e-discovery are universal and are very much worth sharing here. 

Many people use the start of a new year to resolve to improve their diet, get more sleep and exercise more. Professional resolutions for attorneys often focus on improving efficiency, expanding networks and …

Sometimes An Employer Just Can’t Win

In Deleon v. Kalamazoo Cnty. Road Comm’n, a split Sixth Circuit panel concluded that the district court improperly granted the employer summary judgment on the plaintiff’s discrimination claims despite the fact that the alleged adverse employment action was a transfer that the plaintiff had actively sought only nine months earlier.

Robert Deleon (“Deleon”), a 53-year-old Hispanic male of Mexican descent was employed with the Kalamazoo County Road Commission (“Commission”) for 28 years. Deleon was an “Area Superintendent” and had generally received positive reviews. When an “Equipment and Facilities Superintendent” position opened up in November 2008, Deleon applied. The working …

Oh the Weather Outside is Frightful! How Employers Can Handle the Impact of Inclement Weather (Polar Vortex Anyone?) and What NIOSH, OSHA, the NLRA and the FLSA Have to Say About It

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! Since many parts of the United States are currently dealing with the effects of, what-is-being-called, the “Polar Vortex,” we decided to take a look at some common headaches for employers caused by bad weather and provide you with some helpful guidance.

The National Institute for Occupational Safety and Health Addresses Cold Stress

Extreme cold temperatures have disastrous effects on humans and their ability to …

State Minimum Wage Increases for 2014

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.

Click on the map to find out more.

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

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. (A background of the FCRA’s general requirements for employers is necessary to understand the FACTA’s implications, which we have outlined for you here.)

So what is the FACTA? As of December 4, …

Major Changes to Affirmative Action Requirements Effective March 24, 2014

Companies covered by federal affirmative action obligations have some major changes for which to prepare. The Office of Federal Contract Compliance Programs (OFCCP) has issued two new rules which take effect March 24, 2014. The new rules expand the affirmative action requirements for covered veterans and disabled persons.

For over 30 years, regulations under the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) and under Section 503 of the Rehabilitation Act of 1973 have required covered employers to engage in good faith efforts to recruit and employ covered veterans and disabled persons. The requirements include the obligation to invite …

When Employee Taunts Employer via Facebook to “FIRE ME. …Make my day. . .” NLRB Memo Concludes the Employer Can Go For It

The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME … Make my day …"

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social …

Federal Contractor Update: Contractors Must Begin Using New Census Data Next Year

The Office of Federal Contract Compliance Programs (OFCCP) recently released a notice that the 2006-2010 census data must be used for all affirmative action plans for plan years beginning on January 1, 2014, and OFCCP will begin using 2006-2010 census data to evaluate affirmative action plans and efforts as of that same date. Keep in mind that, since the data was released in late November 2012, federal contractors were permitted to voluntarily begin using the census data, which is based on a compilation of 2006-2010 American Community Survey (ACS) data. Contractors should keep in mind that the data is coded …

Don’t Expect Any New Right-to-Work Legislation in Ohio…Until Perhaps After 2014

First it was Wisconsin. Then Indiana. Then Michigan of all places. Right-to-work legislation is being considered, and in some cases passed, by legislatures throughout the Rust Belt. Given that trend, and the economic benefits to businesses and the state that follow with right-to-work, it was only a matter of time before regional pressures led the Ohio legislature to consider the idea notwithstanding the previously failed attempts on Senate Bill 5.

Just recently, two Ohio House of Representatives members, Kristina Roegner (R-Hudson) and Ron Maag (R-Lebanon), announced they are sponsoring bills that would enact right-to-work for both the public and private …

OFCCP Enforcement and Regulatory Agenda Heightened for Fiscal Year 2013

Federal contractors and subcontractors should take notice that, in the last couple of years, the Office of Federal Contract Compliance Programs (OFCCP) has been pursuing a much more aggressive enforcement and regulatory agenda. Final revised rules on disability and veterans affirmative action are expected soon. Later in 2013, proposed new rules for construction contractors and gender discrimination are expected. We will post to this blog when these are available.

As we are awaiting these new regulatory frameworks, it should be noted that OFCCP has also been conducting more in depth and more aggressive compliance evaluations of federal contractors and subcontractors. …

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