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Assessing the Impact of President Obama's Immigration Actions on Employees and Employers

Last week, President Obama outlined his plans for Presidential action relating to U.S. immigration system reform. Setting aside the significant process and procedural controversies, following is a brief summary of some of the most important aspects proposed in this action which may affect your company and your employees. More ›

11th Circuit: The EEOC Can't Always Get What It Wants

The Eleventh Circuit Court of Appeals recently shouted down the EEOC's broad subpoena powers when it held that the Commission wasn't entitled to hiring and firing information relating to Royal Caribbean's workers and job applicants who were not U.S. citizens, because that information had no bearing on the charge before the EEOC.

In 2010, Jose Morabito, an Argentinean national who was employed by Royal Caribbean as an assistant waiter on one of its cruise ships, filed a charge of discrimination with the EEOC.  In his charge, Mr. Morabito claimed Royal Caribbean violated the ADA when it failed to renew his employment contract after he was diagnosed with a medical condition.  Royal Caribbean responded to the charge by arguing (1) that the ADA was not applicable because Mr. Morabito was a foreign national who was employed on a ship flying the flag of the Bahamas, and (2) that, because Royal Caribbean ships are registered under the laws of the Bahamas, Royal Caribbean was required to follow the Bahamas Maritime Authority ("BMA") medical standards for seafarers, which disqualified Mr. Morabito from duty.  More ›

First Circuit Analyzes Whether Employees' Fluctuating Pay Meets FLSA's Salary Test

A recent First Circuit decision demonstrates how, in determining whether employees meet the FLSA's salary requirement,courts can look at how the employees are actually paid rather than any theoretical payment plan in determining whether employees meet the salary requirement of the exemption tests.  In the case, two employees who worked as project managers for Saint Consulting claimed that were misclassified as exempt employees because the way in which they were paid did not meet the minimum salary test required for an exemption under the FLSA. More ›

Employer Prevails on Misclassification Claim Where Employee Fails to Prove Hours Worked

Greg Holaway worked as a Field Service Engineer for Stratasys, Inc.  He was categorized as exempt from the provisions of the Fair Labor Standards Act (FLSA) requiring the payment of overtime.  Even though his title was "Engineer," his position was closer to that of a customer service technician who installed machines and maintained previously installed machines.  He was responsible for customers in various states.  On February 8, 2012, Holaway sent an email to other Field Service Engineers complaining about being expected to work 45 to 60 hour weeks without overtime pay. He was terminated shortly after he sent the e-mail, ostensibly for violating the company's online protocol. More ›

Second Circuit: Oral Agreement to Pay Commissions Not Barred by Statute of Frauds

A recent opinion from the Second Circuit Court of Appeals reaffirms that the Statute of Frauds will not void an oral agreement to pay commissions if the agreement lacks a fixed duration. More ›

Court Holds that Restaurant Owner May Be Personally Liable for FLSA Violations

A new federal case out of Illinois demonstrates the extreme importance of complying with wage and hour laws, especially where the law provides for individual liability against those who control the terms and conditions of employment. More ›

Eighth Circuit Permits Employee to Maintain Age Bias Claim Based on Company's Age-Based Health Care Considerations

With the rising costs of health care benefits for both employers and employees alike, a recent case out of the Eighth Circuit provides an important reminder that even seemingly innocuous cost control measures can have a discriminatory impact and can land an employer in hot water. More ›

No Class Action Waivers in Arbitration Agreements, Says NLRB

The National Labor Relations Board (NLRB) has decided to follow its own oft-criticized 2012 decision in D.R. Horton, holding that arbitration agreements barring class action lawsuits about working conditions, which are signed by employees as a condition of employment, are unlawful under the National Labor Relations Act. More ›

Delivery Change: UPS Announces Modification of Challenged Pregnancy Accommodation Policy Just Weeks Ahead of Supreme Court Arguments

In July of this year, we wrote about new EEOC guidance on the accommodation of pregnant employees under both the Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA).  One of the primary issues addressed in the EEOC's guidance was the accommodation of pregnant employees under the PDA on the same basis as disabled employees; in other words, whether a non-disabled pregnant employee can claim gender discrimination if he or she is not provided the same accommodations as a disabled employee.  The EEOC stated that she can, equating any policy that denies such accommodation to intentional gender discrimination. (As we wrote at the time, one dissenting Commission member referred to this controversial new position as “me too” coverage – “whatever a person with a disability under the ADA is entitled to, I’m entitled too, to.”)  

As we also noted in July, however, this very same issue will come before the U.S. Supreme Court this term, and a last-minute development now gives employers even more reason to pay attention. More ›

NLRB Finds That Employer Could Rescind Offers After Workers Discussed Detailed Insubordination Plans on Facebook

In a (rare) positive social media decision for employers, the NLRB ruled on October 28th in Richmond District Neighborhood Center, Case 20–CA–091748 (Oct. 28, 2014), that two employees who discussed their insubordination plans in great detail in a Facebook “comment thread” lost the National Labor Relations Act’s protections. The discussion, the Board held, was not "protected, concerted activity," and the employees therefore could not file an unfair labor practice charge after they were not rehired as a result of their comments.  More ›