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EEOC considers credit discrimination

Creditworthiness is not protected under the civil rights laws, but it may serve as a basis for a discrimination claim when used in making employment decisions. In an advisory opinion published in March 2010, the EEOC opined that if an employer’s use of credit information disproportionately excludes African-American and Hispanic candidates, the practice would be [...]

Medical marijuana – do employers need to accommodate?

So far, the courts have responded with a resounding no. Most recently, the Oregon Supreme Court held that an employer can fire a worker for using medical marijuana, even if he is legally authorized by the state to use. In Emerald Steel Fabricators v. Bureau of Labor and Industries, John Doe argued that he was [...]

HIV-Positive employees protected under the ADAAA

Last year’s Amendments to the American with Disabilities Act (“ADAAA”) were intended to expand the scope of the ADA, essentially making it easier for plaintiffs to establish that they have a disability. The Amendments provide a non-exhaustive list of “major life activities” (which, when substantially limited, give rise to a disability), including the operation of [...]

Is your “intern” entitled to minimum wage?

As we previously cautioned, unpaid internships can run afoul of the Fair Labor Standards Act, and the Department of Labor is stepping up enforcement efforts as more college grads are offereing their services for free in a tough job market. The issue is whether the intern should be considered an "employee" under the FLSA and [...]

Employers don’t need to tolerate difficult employees

Employers can take adverse action against difficult employees even when they fall within a protected class, according to a recent decision by the U.S. Court of Appeals for the Sixth Circuit. In Viergutz v. Lucent Technologies, Inc., the court held that Lucent had a legitimate, non-discriminatory reason for refusing to re-hire Mr. Viergutz due to [...]

Employers must be prepared for GINA claims

The EEOC is seeing the first wave of claims under GINA. Title II of GINA, which went into effect in November, prohibits using genetic information in making employment decisions, restricts acquisition of genetic information by employers, and strictly limits its disclosure. Title I of GINA, which addresses the use of genetic information in health insurance, [...]

Employers Beware of the Misclassified Employee

Following up on last week’s post about recent legislative efforts to prevent misclassification of employees as independent contractors, employers should be aware that the U.S. Department of Labor has stepped up efforts to enforce the issue in conjunction with the IRS’s plan to audit employment tax payments at 6,000 randomly selected companies over a three-year [...]

What baggage do you bring to work?

We counsel employers to leave their biases at the door when making employment decisions, be it recruiting, discipline, promotion or termination. But how reasonable is that instruction? Not very, according to a number of tests and surveys that show that each one of us carries biases and prejudices, many of which may be unnoticed, that [...]

Sexting at Work: What is an employer to do?

“Sexting,” the practice of taking sexually explicit pictures and sending them to others, is a rapidly emerging workplace problem.  Almost every employment lawyer has at least one case involving an employee sexting an inappropriate picture to a coworker. And since it rarely matters in the harassment context whether the PDA is personal or company-issued, it [...]

PDA Use Creates Wage and Hour Issues

Do you require or expect your employees to check email after hours or on weekends? If so, you could be liable for violations of the Fair Labor Standards Act's (FLSA) overtime provisions. While exempt (generally managerial) employees are not entitled to overtime pay, nonexempt employees are, and that includes time spent checking email and voicemail. [...]

Simple strategies for avoiding employment claims

We have seen an unprecedented rise in EEOC (and related state agency) claims in the first few months of 2010, which will certainly result in a rise in employment-related litigation. In many cases, employers could have avoided the claims had they been more proactive in removing sources of conflict in the workplace, implementing and following progressive disciplinary programs, and resolving disputes at [...]

Absenteeism and Alcoholism – When can you fire?

Last week a New York federal appeals court determined that while alcoholism can be considered a disability under the Americans with Disabilities Act (“ADA”), the impairment cannot protect an employee from termination if it affects his ability to show up for work. Bruce VandenBroek sued his former employer, claiming he was terminated because of his [...]

What is email really costing your company?

A significant loss in productivity. Some studies estimate that up to 50% of corporate email communications are non-business related, and are either spam or personal in nature. Frequently checking new email messages breaks concentration, changes focus, and elevates new email messages to the highest priority task regardless of what is, or should be, the actual [...]

Congress extends COBRA subsidy

Yesterday the U.S. Senate passed H.R. 4691, which extends the ARRA COBRA subsidy through March 31, 2010. Compliance assistance for employers will be available at http://www.dol.gov/ebsa/COBRA.html once the President signs the bill. We recommend employers become familiar with the most recent notice requirements. Currently there are efforts in Congress to extend the benefits through June 30, 2010. [...]

Are your nooks and crannies protectable trade secrets?

Thomas's English Muffins (Bimbo Bakeries USA) has stopped a former V.P. from starting his job at competitor Hostess based on the V.P.'s knowledge of the invaluable trade secrets of Thomas's English Muffins' "nooks and crannies." A Pennsylvania judge has ruled that V.P. Botticella cannot start his job until the legal issues are resolved, based on [...]

An Employee Need Not be Disabled to Pursue ADA Claim

The EEOC recently reminded us that the Americans with Disabilities Act extends to employees associated with a disabled person. In its recent suit against The Timken Company for gender and disability discrimination, the EEOC alleges that Timken refused to hire an employee for a full-time position as a process technician because of her  gender and because she is [...]

It’s Not Just for Teenagers – More Businesses are Using Facebook to Connect

We’ve written about the hazards of employees using Facebook, and the potential liability of employers who use social media to screen applicants; but what about businesses doing business on Facebook and other social media sites? Apparently social media sites are emerging as a way for businesses to connect. Salon magazine recently listed popular guides to [...]

COBRA subsidy extension is official

The President signed the COBRA subsidy expansion as part of the Department of Defense Appropriations Act, 2010, extending the COBRA subsidy and requiring employers to notify certain eligible individuals. Highlights of the new law include: Eligible individuals involuntarily terminated from employment on or before February 28, 2010 are eligible to receive the subsidy The premium subsidy period is extended [...]

House passes COBRA extension

As anticipated, the House of Representatives voted last week to extend the COBRA/ARRA subsidy.  Embedded in H.R. 3326, a measure appropriating funds for the Department of Defense, the nine-month, 65 percent premium subsidy would be extended by six months to a total of 15 months. It would apply to those who lose their jobs through [...]

Sometimes it pays to hire an outside investigator

How do you know when a workplace investigation needs an outside investigator? While we'd love to say "always," many investigations can be handled internally by competent HR personnel or in-house counsel. There are, however, red-flags that indicate when an outside investigator is necessary: The government is involved (EEOC, SEC, DOL) There is a chance of [...]

How valuable is your HR professional?

Very, according to The Wall Street Journal, calling HR professionals “suddenly hot.” Companies are recognizing the importance of experienced HR specialists on a range of hot button issues like executive pay, management succession, and integrating acquisitions. A good HR director with solid recruiting, hiring and performance management policies can shield a company from claims, as [...]

IRS Gives Employers a Small Gift this Holiday Season

The IRS is adjusting the standard-mileage-reimbursement rate for 2010...DOWN to 50 cents per mile (presently 55 cents). The mileage rate for 2010 reflects lower transportation costs compared to a year ago. Employers who use an amount at or below the IRS rate eliminate the need to maintain extensive records in order to exclude the reimbursement from employees' taxable [...]

Questions as COBRA Assistance Comes to an End

The COBRA assistance available under the American Recovery and Reinvestment Act of 2009 (ARRA) is scheduled to expire at the year-end. ARRA set up an assistance package to provide recently unemployed workers up to 65% of COBRA premiums to maintain health insurance. While popular with employees, the program has created an administrative headache and an [...]

Business is best served by a combination of online and old school networking

With all due respect to our FABULOUS technology/media guru, Jamie Ginsburg, I’m still a fan of old-fashioned face-to-face networking. The Wall Street Journal recently ran an article about the Wednesday 10, a social/business networking group started by William Safire in 1930 that still exists today. The members of the Wednesday 10 (all males, self-made, and [...]