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Brian Hall partners with employers of all sizes – from small family-owned businesses to multi-national Fortune 500 companies – to help them effectively manage the issues they face on a daily basis in an increasingly regulated workplace. Brian focuses much of his practice on educating and assisting employers in their use of 21st century technology in their workplaces and its impact on cybersecurity, employee privacy, and trade secret protection.

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

Cropped shot of a man and woman completing paperwork together at a deskEffective Dec. 20, 2021, the federal Fair Chance to Compete for Jobs Act will prohibit federal contractors from inquiring-either directly or through a background screening process-into an applicant’s criminal background until after the contractor extends a conditional job offer to the applicant. The law will only impact those applicants seeking employment in positions related to

A federal lawsuit alleging discrimination under Title VII must be filed within ninety days after the EEOC has completed its handling of the related discrimination charge and issued its Notice of Right To Sue. Some employers attempt to shorten the time for filing discrimination charges by getting employee or applicants to sign agreements to that

The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years. Most notably, the 9th Circuit has led the way in finding that an employer’s inclusion of a liability waiver in its disclosure form violates the standalone requirement. Now, in Gilberg v. California Check Cashing Stores, LLC, a panel of the 9th Circuit Court of Appeals has held that an employer’s inclusion of state law mandated requirements in the disclosure form provided to job applicants violates the standalone document requirement despite the fact that they were included in the form in an effort to assist the applicants in understanding all of their rights as it related to the background screen being obtained on them. In short, the panel was not moved by the employer’s argument that its additional disclosure of the applicable state laws “furthers rather than undermines FCRA’s purpose.” To the contrary, the panel held that “the presence of this extraneous information is as likely to confuse as it is to inform” and therefore, it does not further FCRA’s purpose. Instead, the panel noted that the only exception to the standalone document requirement is the one in the statute itself that permits the disclosure and authorization to be combined into a single document.

Continue Reading Ninth Circuit holds that inclusion of state law disclosures violates the FCRA’s “stand-alone” Requirement

On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status.
Continue Reading NLRB overrules Obama-era precedent for independent contractor test

After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the team’s  equipment arrived, airline managers motioned for the charging party and three co-workers to assist. Instead, they walked away and did not return until after baggage handlers from inside the airport terminal had done the bulk of the work. That evening, one of the airline managers called Alstate to complain about subpar customer service, which ultimately resulted in the termination of Greenidge and his three coworkers.
Continue Reading NLRB reverses Obama board trend on expansion Of Section 7 rights

In many employment cases, the parties engage in a battle over content in the plaintiff’s private social media accounts. The recent decision from the U.S. District Court in Eastern District of Michigan in Robinson v. MGM Grand Detroit, LLC, Case No. 17-CV-13128 (E.D. Mich. 1/17/2019) illustrates well how an employer can demonstrate its right

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

Section 301 of the federal Economic Growth, Regulatory Relief and Consumer Protection Act, which was signed into law on May 24, 2018, amended the Fair Credit Reporting Act (FCRA), effective Sept. 21, 2018, to require consumer reporting agencies (such as those that employers use for applicant and employee background check purposes) to include new language

On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that also offers dining services
  • Volunteer status of nonprofit members serving as credentialing examination graders

Continue Reading U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues