Legal

One State Looks to put Enforcement Muscle Behind Workplace Concealed Carry Law

Instead of complaining about it and threatening non-compliance, now is the time to invest in implementing an Active Shooter/Emergency Action Plan.

It’s been six months since Ohio made it illegal for employers to prohibit employees (or anyone else for that matter) from storing a firearm in their vehicles on the employer’s property. This law, however, lacks any specific statutory teeth (sort of). If Ohio legislators get their way, this omission will soon change. Am. Sub. H.B. 49 proposes to add the following…

More on Why Holding Lawyers Liable for Retaliation to a Client’s Employee is a Bad Ruling

As the 9th Circuit's Arias v. Raimondo ruling showed, it’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client.

Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer. It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an…

9th Circuit’s Arias v. Raimondo Ruling May Be the Year’s Worst Employment Law Decision

Add the 9th Circuit to my California tourist stops in July, because this decision is flat-out bonkers.

I’ll be vacationing in California with my family the first two weeks of July. After reading the 9th Circuit Court’s decision in Arias v. Raimondo — holding an employer’s attorney liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime — I’m thinking of adding the 9th Circuit to my list of tourist stops in San…

A Contrary (and Common Sense) Appellate View on Rude Employees and the NLRA

If an employer has a good faith belief that an employee’s conduct violates a policy, the NLRB cannot overturn the employer’s good faith decision.

It’s been six weeks since I reported on NLRB v. Pier Sixty, in which the 2nd Circuit Court of Appeals held that the National Labor Relations Act protected the profanity-laced Facebook rant of a disgruntled employee. I have hoped that Pier Sixty is an aberration. Thankfully, last week the 1st Circuit came along with a well reasoned contrarian view in…

Employee Not ‘Otherwise Qualified’

An employer may not be required to accommodate an employee by providing infinite leaves of absences.

Joyce Whitaker worked for the Wisconsin Department of Health Services. In 2009, Whitaker advised the department of a disability involving chronic back pain. In August 2010, Whitaker requested a two-week FMLA leave for recurrent back pain, but before returning she requested additional leave until Dec. 27, 2010, for herself and to care for a family member. The department granted Whitaker’s…

Class-action Waivers Remains a Huge Issue for Employers

The 6th Circuit Court recently joined the battle over over whether the NLRA allows employers to require employees give up their rights to litigate or arbitrate class action suits.

There has been much judicial and administrative ink spilled over the past few years over whether the National Labor Relations Act permits employers to require employees to give up their rights to litigate or arbitrate class or collective actions. This is one of the most important issues facing employers, which have looked to class-action and collective-action waivers as an important…

Consider ADEA When Planning Staff Cutbacks

Employers considering implementing policies that impact a large number of employees must evaluate the impact not just as to workers over 40, but as to any recognizable subgroup of workers over 40.

“Disparate impact” claims under the Age Discrimination in Employment Act arise when an employer’s seemingly neutral employment policy has a disproportionate impact on workers over 40. Karlo v. Pittsburgh Glass Works involved a reduction in force. The employer did not run a statistical analysis to ensure that cutbacks did not disproportionately affect workers over 40. When plaintiffs sued, claiming a…

The National Labor Relations Act Protects the Rights of Non-employees Under Other Statutes‽

While the logic of this decision is certainly troubling, one can rest comfortably knowing that at some point this year, a majority of the NLRB will no longer sympathize with this viewpoint.

In MEI-GSR Holdings, LLC (5/16/17) , a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act. Let me pause for a second to let this sink…

Why Process Matters in HR Decision-Making

It’s a sad reality that when HR lacks process in decision-making, subjectivity creeps in and havoc ensues.

When evaluating how to structure a process robust enough to withstand regulatory scrutiny, technology can help answer compliance questions, assess risk and document the decision-making process. It’s safe to say that HR departments strive not just for the right result but ultimately, the most defensible outcomes that best mitigate risk. In an evolving era of HR and people management, “defensible”…

Is Your Non-compete Agreement Killing a Fly With a Sledgehammer?

You should be in the business of making money, not throwing it away chasing a fool’s errand.

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee…