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EEOC’s Updated Retaliation Enforcement Guidance Seek to Expand the Reach of its Anti-Retaliation Laws

Effectively responding to employee discrimination complaints by current employees without running afoul of federal and state anti-retaliation laws presents a slippery slope for all employers.  In fact, retaliation complaints make up nearly half of all discrimination charges filed with the EEOC today.  Thus, it is critical that employers, their managers, supervisors, and employees understand who the laws protect and what constitutes retaliation.

On Thursday the EEOC sought to clarify these standards by issuing updated proposed enforcement guidance.  The proposal is the first update to the EEOC’s Compliance Manual since 1998.  The proposal was prompted by significant developments in the law and the marked increase of retaliation claims over the last eighteen years.

The 76-page proposal covers the definition of retaliation, the elements of a retaliation claim, interference claims under the Americans with Disabilities Act, remedies, and best practices.  Rather than summarize all of the above, I will highlight the most significant developments below. More ›

Captivating! NLRB Reverses 57-Year-Old Decision, Expands "Captive Audience" Rule in Mail Ballot Elections

In conjunction with other recent changes to its rulings regarding organizing and elections, the National Labor Relations Board recently ruled to expand the period of time during which "captive audience" meetings are banned in mail-ballot elections. The ruling aligns the rules for manual and mail-ballot elections. Although this alignment may simplify compliance, employers should be aware that captive audience meetings are now banned 24-hours prior to the mailing of ballots and that the ban continues through the election. More ›

EEOC Announces Plan to Begin Collecting Pay Data on EEO-1 Reports

The Equal Employment Opportunity Commission (EEOC) announced last Friday a proposed rule that will require all employers with 100 or more employees to report pay and hours based on their employees' race and gender. The rule change would revise the EEO-1 Report to include this new reporting category. The proposed rule is scheduled for formal publication on Monday, February 1. The public has until April 1, 2016 to comment. More ›

In New Guidance, DOL Gets Aggressive on "Joint Employment"

By issuing a new interpretative document (bearing the catchy title “Administrator’s Interpretation No. 2016-1”), the U.S. Department of Labor's Wage and Hour Division has attempted to clarify the concept of “joint employment” under the Fair Labor Standards Act.  And make no mistake, from an agency enforcement perspective, the joint employer concept has been expanded. More ›

U.S. Supreme Court Rules Employers Cannot Avoid Class Actions By Offering Complete Relief to Plaintiffs

In a 5-3 decision, the United States Supreme Court affirmed the Ninth Circuit’s decision in Campbell-Ewald Co. v. Gomez, holding that an unaccepted settlement offer or offer of judgment providing for an individual plaintiff complete relief does not moot a class action complaint, resolving a split among circuits. However, the Court limited its holding by declining to address “whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” The Court’s dissenting opinions and concurring opinions suggest actual tender would moot the plaintiff’s claim. More ›

Haze Lifting on Employer's Rights and Medical Marijuana

The fast expansion of the medical marijuana movement has brought with it growing confusion on the line between a workers' rights to take advantage of the rights afforded by these state statutes and an employer's right to enforce its anti-drug policies. Last week, a New Mexico District Court decision added to the recent list of decisions to tackle this issue and, in doing so, came down on the side of the employer. More ›

Seventh Circuit Reiterates Standard for Establishing Substantial Limitation on the Ability to Work

It goes without saying that an employee cannot prevail on a disability discrimination claim unless he is actually disabled.  In the context of the Americans with Disabilities Act (ADA), this means that he must show that a disability “substantially limits” one or more of his “major life activities.”  Predictably, plaintiffs often allege that the “major life activity” that their disability has impacted is the activity of “working”.  Thus, an important question for employers is this: when does a disability actually limit an employee’s ability to work? More ›

New Jersey's Department of Labor Issues New Rules Regarding "Ban the Box"

On December 7, 2015, the New Jersey Department of Labor and Workforce Development (the “NJDOL”) promulgated a set of regulations to enforce and more specifically define the restrictions contained in the State's "Opportunity to Compete Act."  Governor Chris Christie of New Jersey signed the Act on August 11, 2014, following the lead of a handful of other states by requiring employers to remove criminal-convictions questions from job applications and defer background inquiries until the conclusion of the “initial application process”.  While the Act went into effect on March 1, 2015, the NJDOL's new rules are the first issued.  Among other important aspects, the NJDOLs new regulations define a first interview as any "live, direct contact” between the employer and applicant, whether by telephone, video conferencing, or in person. More ›

Tales of the FLSA: The Case of the Complaining Manager

What can you do when your boss won't listen to you, the Manager/Director of Human Resources?

"Keep complaining," the Ninth Circuit said (not in those words). More ›

New IRS Initiative Highlights Trust Fund Tax Compliance Issues

The IRS has begun a new initiative focused on payroll tax compliance for employers, and specifically the timely deposit of withheld payroll and income taxes. Those taxes, which are withheld from an employee's paycheck and then turned over to the IRS by employers, are known as "trust fund" taxes. Employers who fail to timely submit their trust fund taxes may be subject to civil or criminal liability, as well as personal liability for those individuals who are responsible for collecting and depositing the trust fund taxes. More ›