Labor & Employment Insights

Perspectives in labor and employment law affecting employers and businesses

If you see your waiter or waitress grumbling during the holiday season, it could be due to the DOL’s Wage and Hour Division’s revision of the rules dealing with minimum pay due to “tipped” employees. Under the FLSA and accompanying regulations, employers can pay “tipped” employees (those who regularly receive not less than $30 a month in tips) not less than $2.13 per hour and take a “tip credit” for the difference they receive in tips…
Many employers have progressive discipline policies. Are they always followed? Probably not. Should they be? Absolutely, and Lindeman v. St. Luke’s Hospital of Kansas City, a recent case in the Eighth Circuit, demonstrates that being able to point to the use of a progressive discipline policy can help dispose of an ADEA/ADA case. The Facts Todd Lindeman worked in St. Luke’s Hospital of Kansas City where the progressive discipline policy had varying penalties for each infraction: verbal…
Can small municipalities make decisions based on age? Not according to the United States Supreme Court, which recently resolved a circuit split on the question of whether the Age Discrimination in Employment Act (ADEA) applied to state and federal political entities with fewer than 20 employees. In Mount Lemmon Fire District v. Guido, a unanimous court found that the ADEA applies to all federal and state entities, regardless of the size of those entities’…
When evaluating a discrimination case, one can never forget to go back to the basics and start with the elements of the cause of action. For example, if you are facing an age discrimination claim, is the employee in the protected class, i.e., over 40 years old? Were they replaced by someone outside of that class? A lawsuit cannot move forward if a plaintiff fails to provide evidence to support each element required by law.…
Many people chuckled when they read the news story about the woman who attempted to bring her “emotional support squirrel” on a Frontier Airlines Flight early in October. However, it is hard not to notice the proliferation of “emotional support animals” — usually dogs or cats, but sometimes turkeys or even spiders. As an employer, what are your obligations when an employee tells you they need to bring an animal to work? Well, as is the case in…
If you conduct pre-hire background checks, you know you have to comply with the Fair Credit Reporting Act (FCRA) or risk trouble (called lawsuits). Part of that compliance is providing notice to the applicant if you are going to take an adverse action based on the background check, along with a Summary of Your Rights Under the Fair Credit Reporting Act. Well, without any fanfare (or advance notice), the Consumer Financial Protection Bureau (CFPB)…
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…