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Joint Employer Standard Expanded: NLRB Overturns 30 Years of Precedent

In a dramatic departure from over 30 years of precedent, the National Labor Relations Board has modified the standard by which it determines whether two entities are "joint employers" under the National Labor Relations Act (NLRA). The 3-2 ruling in Browning-Ferris Industries of California, published on August 27, 2015, has serious implications for franchising, staffing agency, and contractor relationships between parent companies and employers. The ruling greatly increases the ability of workers to bargain with both their employer and the company that hires their employer, and to hold both joint employers responsible for various wrongs.  More ›

Court Revives DOL's Expanded Overtime and Minimum Wage Rules for Home Health Care Workers

On August 21, 2015, the U.S. Court of Appeals for the District of Columbia in Home Care Association of America v. Weil reversed a lower court decision and upheld the U.S. Department of Labor's (DOL) 2013 regulatory change regarding domestic service workers who provide companionship services or live-in care.  More ›

Say What? An Employee Can Sue for Discriminatory Termination After Resigning?

The employee who causes you to lose sleep at night—you know, the poor performer with a worse attitude—saunters into your office Friday afternoon and QUITS. As she walks out the door with her belongings, you exhale a deep sigh of relief and smile. You won’t lose another wink of sleep over this again…

Fast forward two months. It’s Monday morning. You stop by the mail room to pick up your mail, and find a letter from the EEOC. Curious, you open it to find a charge of discrimination filed by your old friend. You scratch your head, thinking: “This employee quit. How could she claim we discriminated against her by terminating her. This claim must be frivolous.” Yeah? Think again. More ›

(A Little) More to Digest on Criminal Background Checks

Last month, we discussed the importance of maintaining employment files, including records on the use of criminal background information in the employment process. We suggested steps to ensure that your use of such information is based on a business necessity that will pass agency muster. We'd like to supplement those suggestions based on a recent presentation by EEOC Commissioner Constance Barker.  More ›

Using Criminal Convictions in the Hire Process: A Hobson's Choice for Employers?

Is the government really telling employers that they are not allowed to disqualify an applicant because of past criminal activity?  In a word, yes.  That is increasingly becoming the case on the state level and has been the focus of federal enforcement efforts over the past several years, ever since the EEOC updated its guidance on this topic in 2012.  This flurry of activity has made what was historically a simple hiring practice into a legal minefield. More ›

Four Big Takeaways from Illinois' Proposed Pregnancy Accommodation Rules

Illinois employers, take note—in mid-July, the State's Department of Human Rights published its proposed rules implementing the State's new pregnancy discrimination law.  As readers of this blog will know, the new law took effect at the beginning of 2015.  The law imposes additional requirements and clarifies employers' obligation when it comes to accommodating pregnant employees; in effect, it requires that any pregnant employee or job applicant (including those with “conditions related to pregnancy or childbirth”) must be accommodated in the same way that disabled employees are accommodated under the Americans with Disabilities Act.  More ›

Trend Alert: NLRB Holds Employee Acting Alone Engages in Concerted Activity

The NLRB, and courts interpreting the National Labor Relations Act ("NLRA"), consistently have held that to engage in concerted activity protected by Section 7, two or more employees must take action for their mutual aid or protection regarding terms and conditions of employment.  Key takeaways: "two or more" and "mutual."  But, as the title of this article suggests, even a lone wolf may fall within this definition in certain circumstances.       More ›

It May Be A Lawyer Doing Work At A Law Firm…But Don't Call It 'Legal Work'

As e-discovery issues abound, the increased number of contract lawyers combing through massive document productions for privilege and relevance has developed into a cottage industry in the past decade. Companies helping law firms whose clients are embroiled in litigation with huge document productions has spawned new international businesses hiring American lawyers. And like any profitable business innovation, competition follows. Now law firms are bringing these document review lawyers on board and asking them to analyze myriad documents for their clients instead of farming this work to outside companies. But are these document review lawyers performing 'legal work'? The answer may depend on who you ask and why you're asking, but if you ask the Second Circuit Court of Appeals, they will tell you "no." More ›

6th Circuit: Despite Misconduct, Terminating Complaining Employee Still a Problem Under Section 7

Ask any school teacher and they will tell you, the key to maintaining an orderly classroom is identifying the instigator. The "instigator" is the young boy or girl (let’s be honest, usually boy) who does or says something to disrupt productivity and get everyone off-task. I often tell my clients that managing a workforce is similar to managing a group of adolescents. You must establish and enforce rules, know everyone's strengths and weaknesses, recognize personal conflicts, and—most importantly—identify the instigator. In a recent federal case, however, one employer learned the pitfalls of playing teacher: in the workplace, the instigator may be the one person that you don’t want to single out. More ›

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