Labor & Employment Insights

Perspectives in labor and employment law affecting employers and businesses

What if your employee plaintiff sues you and then demands to take the deposition of your company CEO or some other high-level corporate executive who has no personal knowledge about the facts of the case? No one would be excited about that prospect. Fortunately, a Texas appellate court recently ruled that high-level executives can be put off-limits for deposition unless they have particular, personal knowledge of the events in question. The decision, In re Newport
What do you do with employees who use “legal” marijuana in violation of your Drug-Free Workplace Policy? So far, 30 states and the District of Columbia have enacted laws permitting use of marijuana for medical purposes, and eight states and the District of Columbia have legalized recreational use. Several other states are currently considering similar legislation. As marijuana use becomes increasingly permissible under state law, but remains illegal under federal law, many employers are left…
What constitutes a racially hostile work environment? Is one really bad comment specifically aimed at the plaintiff sufficient or do you need a sustained series of racial comments? What if you have both but no evidence that it affects the person’s work performance? In Brenda Smelter v. Southern Home Care Services, Inc., d.b.a. Rescare Homecare, the Eleventh Circuit addresses those questions. The Facts From July 2 until September 9, 2013, Brenda Smelter, a black…
What do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the…
Employment lawyers and most HR professionals are familiar with the Faragher-Ellerth defense to a claim of sexual harassment. In short, if an employer can show that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, AND (2) the employee unreasonably failed to take advantage of available preventive or corrective opportunities, then the employer is not liable. Usually, the defendant-employer points to its sexual harassment policy in the employee handbook and shows that…
As we reported earlier, after a hiatus during the Obama Administration, opinion letters are back and the United States Department of Labor (DOL) recently issued six new ones. Quick Refresher Opinion letters are official, written opinions from the Wage and Hour Division (WHD) on “how a particular law applies in specific circumstances presented by the person or entity requesting the letter.” The DOL encourages the public to submit requests for opinion letters; however, the…
In the wake of the #MeToo movement, I have clients wanting to know what they can do both to improve their workplace and protect themselves. They all have good policies and regularly train supervisors and employees on them. So what’s next? Although there is no silver bullet, I suggest you start with the following three things. Review Your EEO Policy Although most EEO policies are pretty straightforward, they can always use a little polishing. Does…
When everyone’s phone issues that loooong beep indicating a hazardous weather warning or when you see Jim Cantore in your local airport, you know that weather is possibly going to affect your workplace. With Gordon making landfall and other storms on the horizon, we are re-posting this past group of tips on how to deal with extreme weather.  We hope everyone stays safe. Hurricanes, Blizzards, and That Dreaded TORCON Index Many “it was the worst…
In a decision that could have employers rethinking how they offer employees a severance agreement, in McClellan v. Midwest Machining, Inc. the Sixth Circuit held that former employees seeking to void severance agreements do not have to give the severance pay back before filing suit under Title VII or the Equal Pay Act. Factual Summary The facts of this case help give this legal holding some flavor. In late August 2015, Jena McClellan informed her…
Engaging in the ADA interactive process is likely the most significant aspect of managing employees with disabilities. Failing to do so can truly make or break an employer’s ability to protect itself from disability discrimination claims. Employers must remember that one policy or practice does not fit all employees, especially ones with known disabilities. The Sixth Circuit’s opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC illustrates the dangers of applying neutral employment policies to…