When, if ever, is swearing at your supervisor or coworkers a federally protected activity? The National Labor Relations Board (Board) currently is reconsidering what constitutes protected activity under the National Labor Relations Act (NLRA). Specifically, the board is trying to clarify when workers can be protected from discipline for using profanity or engaging in harassing behavior toward supervisors or coworkers. The Concept of Protected Activity The NLRA is a somewhat unique employment law in the…

One of the essential factors for plaintiffs in discrimination cases can be showing that they were treated differently than a similarly situated co-worker — the inference being that they were treated differently because of their age, sex or race (or other legally protected status). In defending those allegations, companies often present facts as to how the workers’ situations are different. In  Johnson v. Ohio Department of Public Safety, two troopers had similar type allegations, and…

Employers who seek to sponsor foreign workers for cap-subject H-1B visas in 2020 will likely see a big change in the process – the use of an electronic pre-registration system that many believe will improve efficiency and reduce costs. The Existing H-1B Cap Process  The H-1B visa program is used by a wide variety of businesses to temporarily employ foreign workers in H-1B “specialty occupations” – generally jobs that require a bachelor’s degree or higher…

Is everything covered by the Americans with Disabilities Act (ADA)? Although we all know the ADA broadly defines the conditions that are protected disabilities, the Seventh Circuit Court of Appeals’ decision in Shell v. Burlington Northern Santa Fe Railway Company, shows that there are limits. Earlier this year, the Seventh Circuit held that obesity alone, without another physiological condition, is not a protected disability. And with the Shell decision last week, the Seventh Circuit…

Add this case to your “Be Sure to Document Your Non-Discriminatory Reasons” file. An employee doing bad things lost on summary judgment in an employment discrimination action, even though she alleged that the company did not properly investigate the reasons for her termination. The Fifth Circuit affirmed a summary judgment on an age claim because the plaintiff’s own poor conduct was enough of a non-discriminatory reason to terminate her. Misconduct Still Carries a Lot of Weight In…

The U.S. Department of Labor (DOL) recently published a Notice of Proposed Rulemaking with changes to regulations regarding tips under the Fair Labor Standards Act (FLSA) and the Consolidated Appropriations Act of 2018 (CAA). What’s the Federal Law as It Currently Stands? The FLSA currently permits employers to take a credit towards the minimum wage for tipped employees. The “tip credit” is equal to the difference between the required federal cash wage for tipped workers,…