Employment & Labor Relations Law

Articles

In-depth looks into topics relevant to you. Find all of the Employment & Labor Relations Law Committee’s articles in this archive.

2019

Employer Liability in the #MeToo Era
By Victoria Harrison and Jack Jarret – May 29, 2019
An anti-harassment policy may not be enough.

Recent Trends in Noncompete Laws Across the U.S.
By Amit Bindra – May 29, 2019
The trend in state legislation has been to allow for easier employee mobility.

The Supreme Court Embraces Statutory Originalism
By Steven B. Katz – May 29, 2019
Everything old is new again.

Visuals: Litigation Analysis of Labor and Employment Data
By Jeremy Guinta and Angela Sabbe – May 29, 2019
Visualizations tell the story in a simple, intuitive, and meaningful way.

2018

Employee Email and Social Media: What Is Protected Concerted Activity under the Law?
By Jennifer Holly – December 3, 2018
Employers must be careful before they discipline employees for comments they post on social media or through email streams, even when those comments contain vulgar and shocking language.

The Aftermath of Epic Systems v. Lewis
By Amit Bindra – December 3, 2018
The U.S. Supreme Court held that the NLRA does not invalidate class action arbitration waivers, which may have significant negative impacts for employees.

The Importance of Data Validation in Litigation
By Jason Blauvelt and Jeremy Guinta – December 3, 2018
Learn the key steps to ensure that your data analytics expert produces an analysis that is useful, sound, and admissible, without costing a fortune.

Proposed Tip-Pooling Regulation: Impact on Restaurateurs
By Katherine Cser – February 21, 2018
The Department of Labor has proposed rolling back the existing regulation that requires tips to be retained by the employees who earned them. The proposed new regulation could have a significant impact on service industries.

Recent Trends in Noncompete Laws Across the United States
By Amit Bindra – February 21, 2018
Over the past few years, courts have become less likely to enforce restrictive covenants.

The Gig Economy: Uber Keeps Rolling Along Despite Challenges
By Trish Higgins – February 21, 2018
A recent state court decision finds that Uber’s drivers are independent contractors due to their level of autonomy.

Medical Marijuana and Employment Considerations
By Jayde Brown – February 21, 2018
The changing landscape of medical marijuana use permissibility has led many employers to question where their employment policies stand.

Keys to a Successful Payroll Audit
By Jeremy Guinta and Angela Sabbe – February 21, 2018
A payroll audit can be invaluable for identifying potential wage-and-hour violations so that remediation can be conducted before any litigation occurs.

Pay Equity Laws: Banning Salary History Questions
By Amber Rogers – February 21, 2018
By encouraging employers to determine salary based on factors other than an applicant’s past compensation, new laws across the country are targeting the gender pay gap.

2017

Establishing and Maintaining the Privilege for In-House Communications
By Jill S. Stricklin and Steven W. Moore – October 18, 2017
The attorney-client privilege will apply when in-house counsel provides predominantly legal, as opposed to business-related, advice.

EEOC: Litigation Focusing on LGBT Discrimination
By Stephen Stecker – August 31, 2017
The Equality Act, introduced into Congress in 2015, would amend Title VII by explicitly adding sexual orientation as a protected characteristic.

California Fair Pay Act: Data Gathering and Gender Pay Analyses
By Jeremy Guinta and Angela Sabbe – August 31, 2017
Employees of the opposite sex can have pay discrepancies—but only based on certain factors.

The Pregnancy Discrimination Act and Requests for Light Duty, Leave, and Related Accommodations
By Alan Lescht, Sara McDonough, and Krista Wallace – August 31, 2017
When considering reasonable accommodations for a pregnant worker, the appropriate comparison is a nonpregnant worker who is similarly limited in his or her ability to work.

2016

Strategies for Handling FMLA Abuse
By Teresa D. Teare and Shelby S. Skeabeck – October 20, 2016
Tools that employers can use to ensure that leave is being taken for legitimate reasons.

Increasing Minimum Wages Across the West Coast . . . and Elsewhere
By Mona K. McPhee – October 20, 2016
Progressive employment values are receiving increasing support and becoming codified in municipal and state laws.

Data Privacy and Protection: Considerations When Producing Employment Data
By Jeremy Guinta and Angela Sabbe – October 20, 2016
High-profile cybersecurity incidents involving the loss of personal, confidential information continue to be on the rise.

Best Practices for Interviewing the Adverse Corporation’s Former Key Employees
By Michael Cavendish – October 20, 2016
When a member of a party’s litigation team conducts an informal, ex parte interview of an adverse party’s former employee, there is a potential that the source will divulge information or documents that may be protected by attorney-client privilege.

California's New E-Competence Rule
By Lisa Sherman, Benjamin Rose, and Jim Carden – January 8, 2016
Even carefully crafted legal hold and preservation letters to custodian employees are insufficient defenses where relevant evidence goes missing.

What the DOL's Proposed Changes to the White-Collar Exemption Rule May Mean for Employers
By Sonya Kwon and Jeremy Guinta – January 8, 2016
The proposed changes may cost employers billions of dollars.

Implementing the "Interactive Process" in the ADA Context
By Wendi D. Barish – January 8, 2016
The ADA puts people to the test when it comes to determining and explaining an appropriate reasonable accommodation for a disabled employee.

2015

The Economic Realities of Employment Class Actions
By Lisa Sherman – April 23, 2015
An uncensored look for employees and employers alike.

An Update on Supreme Court Labor and Employment Cases
By Damien Munsinger – April 23, 2015
A brief breakdown of the top decisions and cases granted certiorari that all labor and employment lawyers should be aware of.

Regular Rate: Navigating Risk Areas and Complexities
By Jeremy Guinta and Angela Sabbe – April 23, 2015
Examining errors frequently made by employers and litigators in calculating an employee's regular rate.

Settling Claims under the FLSA: Is Court or DOL Approval Always Required?
By Gregory J. Northen – January 13, 2015
Whether a settlement agreement must be approved by a court or the DOL is a point of confusion that has been debated in several recent cases.

TMI: Avoiding the Dangers of Using Social Media to Recruit Employees
By Jeana Goosmann and Emilee Gehling – January 13, 2015
Unwary employers could be caught in unexpected litigation when using social-media sources to recruit and vet potential employees.

California Employment Law: No Place for the Wanderer
By James C. Eschen – January 13, 2015
The Golden State's law is generally more friendly to employees than federal law is.

Batson Challenges at Work: Jury Selection in the Realm of Employment Law
By Ikedi O. Onyemaobim – January 13, 2015
The Golden State's law is generally more friendly to employees than federal law is.

2014

The Impact of Medical Marijuana in the Workplace
By Sarah C. Matt – August 13, 2014
Medical-marijuana laws are reaching new highs.

Understanding Workplace-Bullying Legislation
By Randi Melnick – August 13, 2014
Twenty-six states have introduced anti-bullying bills that seek to prohibit mistreatment in the workplace.

Technology and Employee Privacy Concerns: The Current State of Uncertainty
By Teresa D. Teare and Colin P. Glynn – August 13, 2014
BYOD policies raise a host of issues that both employers and employees should consider.

Hacking, Wiretapping, and Other Misdeeds as "Protected Activity"
By Kevin J. O'Connor – June 17, 2014
Decisions to discipline or fire employees engaged in such activity should be made only with the assistance of qualified legal counsel.

Requests for Accommodation: Implementing the ADA's Interactive Process
By Kathleen M.W. Schoen – June 17, 2014
Communication, creativity, and effort are essential.

Withstanding Legal Scrutiny in Employer-Conducted Background Checks
By John F. Lomax Jr. and Jennifer R. Phillips – June 17, 2014
It's a good idea to revisit your forms and polices to ensure compliance.

When Can an Employee Quit and Still Sue for Wrongful Discharge?
By R. Scott Oswald and Nicholas Woodfield – June 17, 2014
The constructive-discharge doctrine has been a boon to employees, helping to keep employers honest. But it is not a panacea.

Social Media: Protecting Trade Secrets and Proprietary Information
By Paul Cowie, Bram Hanono, and Dorna Moini – January 15, 2014
A robust BYOD policy can save you a lot of trouble.

$300,000 Sanctions Award in Title VII Case Reignites Rule 3.7 Discussion
By Lorene F. Schaefer – January 15, 2014
A cautionary tale for employers who use investigation counsel as defense counsel.

The Continued Relevance of the NLRA to Non-Union Workplaces
By Michael C. Duff – January 15, 2014
All employees have rights under the act, not just unions.

Responsibly Handling FMLA Intermittent-Leave Requests
By Don Davis – January 15, 2014
Failing to treat leave requests with due care can result in litigation that proves far more costly than the leave itself.

2013

Implementing the Interactive Process under the ADA
By Tiffani L. McDonough – October 16, 2013
Providing a reasonable accommodation to a qualified individual with a disability is considered one of the most important statutory requirements of the ADA.

Recent Developments in Religious Accommodation in the Workplace
By Tamara R. Jones and Elizabeth A. Erickson – October 16, 2013
Claims of failure to accommodate a sincerely held religious belief are on the rise.

Watch This? Video Interviewing and the Employment Lawyer
By James O'Reilly – October 16, 2013
Video screening may save you from having to defend an EEO claim.

Are Volunteers Considered Employees under the FMLA?
By John S. Austin – October 16, 2013
The Sixth Circuit thinks so.

The Keys to a Healthy Corporate Wellness Program
By Joseph A. Kroeger and Matt P. Milner – June 10, 2013
Many sophisticated employers believe that wellness programs can reap benefits for a company and its employees.

Terminating an "Irresistible" Employee
By Christopher Carcich and Carly Skarbnik Meredith – June 10, 2013
The "my wife made me do it" defense comes into play in an Iowa court.

Enemy of the People: Pleading the First Amendment Retaliation Claim
By Christopher A. Tinari and Michael R. Miller – June 10, 2013
Understand fact patterns before engaging in a lengthy and expensive discovery process.

Website Accessibility and the Americans with Disabilities Act
By Joseph J. Lynett and John A. Snyder – June 10, 2013
How the ADA applies to websites of "places of public accommodation" and state and local government.

Implementing an Effective Workforce Reduction
By Teresa D. Teare and Bryan M. O'Keefe – January 24, 2013
The legal ramifications are complicated and require a nuanced understanding of the law.

Bad-Faith Conciliation and Dilatory Tactics in Agency Settlement Negotiations
By Cynthia Ozger-Pascu – January 24, 2013
Courts are no longer willing to afford absolute deference to the government's position.

Litigating Front-Pay Claims in Employment Discrimination Cases
By Kevin J. O'Connor – January 24, 2013
Front-pay claims can constitute a substantial portion of a jury's award.

2012

EEOC Issues Final Rule on Disparate Impact and RFOAs
By James C. Bailey – September 25, 2012
The rule codifies Supreme Court holdings and offers guidance on applying the defense.

Piling On: Admission of "Me Too" Evidence
By Kevin J. O'Connor – September 25, 2012
Be wary of testimony from co-employees.

Harsh Rulings Against H-1B Employers For LCA Violations
By Anthony F. Siliato and Scott R. Malyk – September 25, 2012
Willful violations and even careless mistakes can result in the award of back pay to the foreign-national worker.

MLR in Group Markets: Will Many Plan Participants Receive Rebates?
By Wayne Jacobsen, Melissa Hulke, and Sonya Kwon – September 25, 2012
Recent data show $700 million will be going to only a small percentage of participants.

Tales from the Great White North: Terminations in Canada
By Karen M. Sargeant – September 25, 2012
"At will" employment is unheard of above the 49th parallel.

MLR Rebates: Do Employers Bear the Distribution Burden?
By Wayne Jacobsen, Melissa Hulke, Sonya Kwon – August 1, 2012
An omission from the August 2012 regulations has effectively shifted the burden of distribution from insurance issuers to employers in the small and large group markets.

SEC Shuts Door on FINRA Collective Action Arbitration
By Todd M. Church – June 28, 2012
Whatever doubt may have remained regarding whether “collective action” employment claims may be subject to arbitration by FINRA has now been extinguished.

Employee Theft Claims under the CFAA: The Latest Chapter
By Kevin J. O'Connor – June 4, 2012
The Nosal decision substantially increases the odds that the U.S. Supreme Court will weigh in on critical issues of statutory construction in the near term.

Technological Advances in Employment Eligibility Verification
By Michael J. Lehet – May 2, 2012
E-Verify and SSNVS are among the tools employers are using to determine authorization to work in the United States.

How Far May a State Labor Law Reach?
By William A. Munoz and Kerri L. Ruzicka – March 27, 2012
A recent decision may create a minefield for employers when it comes to nonresident employees performing work in California.

Lessons Learned from Johnson v. City of Memphis
By Katie Kiernan Marble – March 27, 2012
Avoiding discrimination and correcting past discrimination in promotional processes is an ongoing challenge.

When Can a Former Employee Challenge a Restrictive Covenant?
By Michael J. Miles – March 27, 2012
The question of how to deal with a potentially invalid or overbroad restrictive covenant is a difficult one.

The NLRB and Social Media: A Work in Progress
By Anthony M. Rainone and Jason Watson – March 27, 2012
Employers need to draft clearly defined social-media policies.

2011

Post-Dukes: Employment Class and Collective Action Decisions
By John A. Ybarra and Michael A. Wilder – December 15, 2011
Courts are now reviewing the merits of putative class claims when evaluating class certification motions and requiring plaintiffs to narrowly tailor their proposed class.

Misappropriating Data to Further a Claim—Theft or Protected Conduct?
By Kevin J. O'Connor – November 21, 2011
There is an increasing risk that an employee pursuing an employment claim will gain access to sensitive data and turn it over to counsel for use in the litigation.

A HIPAA Privacy Primer for Health-Related Employment Claims
By Laurie E. Martin – November 21, 2011
Parties and counsel on both sides of health-related employment claims must be familiar with the contours of HIPAA.

Could Employee Criminal Background Checks Violate Title VII?
By Holly J. Clemente – November 21, 2011
The issue of liability for employers who use background checks when making hiring decisions, and rights of employees who are denied for a conviction, remains unclear.

The ADA and Employer Websites
By Michael P. Goodwin – November 21, 2011
The growth of online recruiting and web-based job functions may pose barriers for individuals with disabilities, particularly individuals with visual impairments.

Supreme Court Rules in Favor of Employees in FLSA Complaint Case
By John A. Ybarra and Michael A. Wilder – June 8, 2011
The U.S. Supreme Court held that the statutory phrase "filed any complaint" includes oral as well as written complaints under the FLSA.

Shedding the Aura of Doom and Becoming a Likeable Lawyer
Shedding the Aura of Doom and Becoming a Likeable Lawyer Carol Dominguez Shay – May 19, 2011
This is a starting point to help you put down the scythe, shed the aura of doom that your clients may now sense, and turn yourself into a welcomed business asset.

City of Ontario v. Quon—The Supreme Court’s First Foray into Digital Privacy
By Cameron G. Shilling – May 19, 2011
One crucial lesson for businesses to learn from this case is they need well-conceived policies establishing employee expectations with respect to digital privacy in the workplace.