Labor & Employment Insights

Perspectives in labor and employment law affecting employers and businesses

If an employee files an EEOC charge alleging discrimination and retaliation, never files a lawsuit on that charge, and several years later files another charge that he has suffered retaliation because he filed the first charge—can he still pursue claims from his first charge? In legal speak: Can a claim of alleged ongoing retaliatory behavior survive the EEOC exhaustion requirement when the underlying discrimination claims were time-barred because the plaintiff failed to file suit within…
An employee is on maternity leave and it does not look like she is going to be returning to work. Should you go ahead and terminate her employment during the maternity leave? Wait until it is over to terminate her employment? Require her to come in for an exit interview? Almost all of my clients have struggled with this scenario and held their breath hoping it would all work out for the best. Winn-Dixie recently…
Have you ever been audited by the Department of Labor? Most employers know that the DOL can perform a Fair Labor Standards Act audit to determine whether employees are being properly compensated for time worked. What employers may not know is that the DOL also has authority to conduct audits concerning compliance with the Family Medical Leave Act (FMLA). The DOL’s investigation consists of an examination of company records to determine which laws/exemptions apply, an…
Can you allow an employee to take paid time off for leave that qualifies under the Family and Medical Leave Act but not designate it as FMLA leave? Recently, the Department of Labor (DOL) was asked for guidance on this very issue and, in opinion letter FMLA 2019-1-A, clearly answered no. The Background Under the FMLA, for specified medical and family reasons, eligible employees may take up to 12 weeks of unpaid leave (or…
When can you send an employee for a medical exam? In EEOC v. McLeod Health, Inc., the Fourth Circuit recently provided some guidance and allowed a plaintiff’s claim for an illegal medical exam to proceed to the jury despite evidence of safety and job performance issues. The Facts Cecilia Whitten was the editor of McLeod Health’s internal employee newsletter for 28 years. Whitten developed content for the newsletter by interviewing other employees and writing…
In light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating employees to report any misconduct behind the bench. The conference amended the Code of Conduct and Judicial Conduct and Disability Act rules to make clear that misconduct includes: Sexual harassment or assault. Creating a hostile work environment for judicial employees. The broad category…
Usually, once is not enough, at least in the hostile work environment context. Unless, as the court found in Ronnie L. Outlaw v. SBH Services, Inc., it is. Typically, a single incident of harassment – especially by a co-worker – is not sufficient for a hostile work environment claim to survive summary judgment and be heard by a jury. Most of the time, a viable hostile environment claim involves a series of harassing incidents…
OSHA Safety Retaliation – What Is It? Virtually every employee protection law, federal or state, has some sort of anti-retaliation provision. The federal Occupational Safety and Health Act is no exception. The Occupational Safety and Health Administration (OSHA) enforces the anti-retaliation provision in this federal law and also the anti-retaliation provisions contained in many other “whistleblower-type” federal laws. This post touches on the anti-retaliation cause of action in the Occupational Safety and Health Act, called…
In today’s competitive job market, it is customary for employers to include restrictive covenants, e.g., non-competition and non-solicitation provisions, in employment agreements. While these covenants are essential to protect employers from unfair competition, an attorney’s fees provision is just as critical to save employers tens of thousands of dollars in litigation expenses. In Kelly Services, Inc. v. De Steno, the Sixth Circuit not only illustrates the importance of strategically drafted damages provisions in employment…
Worksite enforcement actions related to unauthorized workers are on the rise. Fulfilling a promise from 2017, Homeland Security Investigations (HSI), the investigatory arm of U.S. Immigration and Customs Enforcement (ICE), has significantly ramped up its efforts to clamp down on the employment of unauthorized workers. ICE’s recently released statistics for Fiscal Year (FY) 2018 show a dramatic surge in the number of worksite enforcement actions carried out by HSI. According to HSI Associate Director Derek…