Payroll Tax Cut Lapses for 2013

January 3rd, 2013 by JBWK

As part of the so-called “fiscal cliff” deal Congress hammered out this week, the 2% payroll-tax cut will lapse. The tax cut, which was only temporary, reduced the employee share of Social Security withholding from 6.2% to 4.2%. Now that it has expired, the employee portion will switch back to 6.2%, meaning employees will take […]

Stalled Legislation May Reappear in 2013

January 3rd, 2013 by JBWK

Given the hectic pace at the end of this Congress’ term, it’s no wonder they left many tasks unresolved, including some pending employment-law legislation. Here are a few things to keep an eye on in 2013 (via Jackson Lewis): The Employment Non-Discrimination Act, which would ban employment discrimination on the basis of sexual orientation The […]

New Fair Credit Reporting Act Form

December 7th, 2012 by JBWK

Employers who use background or credit checks in hiring have a minor change coming: an updated Summary of Rights form will be required starting in January. Under the federal Fair Credit Reporting Act, employers must give the form to applicants or employees if the employer takes adverse employment action against them based on the credit […]

Rounding Time

December 7th, 2012 by JBWK

Employers rounding hourly employees’ time has reared its head recently, leading to many valid questions. Obviously, the most important one is whether the practice is legal. The Department of Labor allows rounding time as long as it “averages out over a period of time.” So employers can round hourly employees’ time to the nearest 15 […]

York Man Fired for Pulling Gun on Robber

December 7th, 2012 by JBWK

A York County man is in the national spotlight after being fired by AutoZone for drawing his own gun on a man robbing the store. When a gun-wielding robber tried to hold up the AutoZone store, employee David McLean ran out to his car, grabbed his own gun, and stopped the robbery. Although plenty of […]

A Friendly Office Party Reminder

November 30th, 2012 by JBWK

As Christmas approaches and holiday parties are in full swing, remember one vital issue about the office party: the rules still apply. One New York employer found that out the hard way, and is now facing a lawsuit from an employee who complained to management about sexual harassment during the 2008 and 2009 Christmas parties, and […]

Pregnancy Protection Heats Up

November 30th, 2012 by JBWK

Although pregnancy occupies an odd middle ground in employment discrimination, the EEOC is trying to ramp up protections for pregnant workers. Currently, employers are only required to treat pregnant workers the same as they treat other employees with temporary injuries, such as a broken leg. They have no obligation to provide reasonable accommodations for pregnancy […]

Who Is a Supervisor?

November 30th, 2012 by JBWK

That’s the big question the U.S. Supreme Court will soon answer. It recently heard oral argument on a Title VII case to resolve an unanswered issue: who, exactly, is a “supervisor”? Title VII case law makes the employer responsible for harassment by a plaintiff’s “supervisors,” but there is no clear definition of who’s included in […]

One Way to Lose

November 15th, 2012 by JBWK

File this one under “people who should have known better.” An employee who sued his company for discrimination had his claim dismissed and is now on the hook for paying the company’s attorneys’ fees. The employee, a computer expert by trade, first planned on suing his employer in 2009. After being told he had to […]

Court Allows Individual Liability for Wrongful Discharge

November 14th, 2012 by JBWK

The Virginia Supreme Court last week broke some new ground in answering a question from the Fourth Circuit Court of Appeals: can a manager or supervisor be personally liable for wrongful termination? Typically, wrongful termination cases are very limited in scope, only allowing a claim where the firing violated a fundamental public policy. The decision […]

Falling With Grace

November 13th, 2012 by JBWK

Although not new, severance pay for executives has piqued public interest lately. Critics argue that executives–often leaving under questionable circumstances–receive multi-million dollar payouts on the way out the door. Two recent departures help reaffirm that view. Former Citigroup CEO Vikram Pandit is collecting just over $6.5 million on his way out. After abruptly resigning (or […]

Obama’s Next Four Years (In Employment Law)

November 8th, 2012 by JBWK

With the unsurprising reelection of President Obama, what major shifts in employment law will we see? Here’s one guess, from the Proactive Employer: Paycheck Fairness Act, which puts the burden on employers to explain gender-based pay gaps, will be revitalized Federal contractors’ compensation practices will be scrutinized The government will press for more contractors to […]

Raises Out; Bonuses In

November 7th, 2012 by JBWK

The Washington Post takes an interesting look at how people are being paid. The upshot: fewer raises, more bonuses. A record high 82% of employers report using some form of performance-based compensation this year to reward their employees. That compensation can take the form of equity or cash bonuses based on the company’s specific needs. […]

NLRB Okays At-Will Policies

November 6th, 2012 by JBWK

After an unsettling twist involving the National Labor Relations Board questioning standard employment-at-will provisions in employee handbooks, the NLRB’s Associate General Counsel has reined in the issue. Reviewing two at-will policies in employee handbooks–stating that employees’ employment is at will and that no express or implied contractual rights are created by the handbook–the memo says […]

Lists You Shouldn’t Make

November 1st, 2012 by JBWK

A federal court from the Western District of Virginia was presented with an interesting piece of evidence: an employer-compiled list of “non-asset” employees. The employer–now a defendant in a disability-discrimination lawsuit–drafted the list of 14 “non-asset” employees it deemed were underperformers. A (now former) employee–a diabetic who was fired–claimed the list included only older workers […]

Magic Johnson Fires 7-Minute-Late Flight Attendant

November 1st, 2012 by JBWK

ABC News reports that Magic Johnson’s former flight attendant on his private jet sued him alleging a host of employment violations. She claims that her firing–for showing up 7 minutes late after being stuck at a deli trying to find two specific types of turkey Magic Johnson required on his plane–was a pretext for age […]

EEOC Addresses Domestic Violence and Title VII

October 31st, 2012 by JBWK

In a recent fact sheet, the EEOC discussed a set of questions that seem odd at first glance, and illustrate a broad trend of its expanding focus. The agency, which has recently addressed employees’ and applicants’ credit reports, high school education (or lack thereof), sexual orientation, and arrest history, is now shifting gears yet again. This […]

Same-Sex Marriage Cases Could Impact Employment Laws

October 26th, 2012 by JBWK

The latest ruling in a series of same-sex marriage cases was issued this week from the New-York based Second Circuit Court of Appeals, finding that the federal Defense of Marriage Act is unconstitutional. The act, DOMA, prohibits federal recognition of same-sex marriages. It’s the second federal appeals court to find it unconstitutional. Other courts have […]

Redefining Workweek to Minimize Overtime

October 25th, 2012 by JBWK

A recent case from the Eighth Circuit Court of Appeals held that a company shifting its workweek from a typical Sunday-to-Saturday week to a Tuesday-to-Monday workweek to reduce overtime was okay under the Fair Labor Standards Act. The natural gas drilling company’s employees worked the same Tuesday-to-Monday seven-day shift, but the redefinition eliminated a substantial […]

Former Employee vs. Small Business

October 25th, 2012 by JBWK

Bloomberg’s Businessweek offers some sound advice for small business owners facing legal threats by former employees. First, from a business owner, the delightful description of being on the receiving end of those threats: For anybody who goes through the blood, sweat, and tears of starting a business, when someone comes along with an attorney whose […]

Citigroup CEO Leaves $33 Million on the Table

October 19th, 2012 by JBWK

After a surprising announcement this week that Citigroup CEO Vikram Pandit was stepping down, talk turned to how much he would take with him. Turns out it may not be all that much. Bloomberg reports that, depending on how he resigned and whether the board gives him something additional, Pandit could have walked away from […]

The Ultimate Hostile Work Environment?

October 18th, 2012 by JBWK

The EEOC reports that a federal judge in Utah was so overwhelmed in a recent case by a construction company’s hostility toward African-American employees that he didn’t even give the company a chance to defend itself. Typically, employers can defend themselves by showing they had reasonable policies that employees failed to follow in reporting harassment […]

Past Year’s Top 25 Employment Law Cases

October 17th, 2012 by JBWK

It’s no secret that employment law claims can add up, but just how high? One group tried to find out, and ended up compiling the 25 most expensive employment-law settlements and verdicts over the past twelve months. The ultimate verdict? Be very careful how you treat your employees. Mercy General Hospital (Sacramento, CA) will pay […]

Talking Politics at Work

October 12th, 2012 by JBWK

David Siegel, the founder and CEO of the world’s largest privately owned timeshare resort company, has a history of taking workplace politics to a whole new level. After heavy campaigning within his company for George Bush during the 2000 election, Siegel has taken a different approach to this year’s presidential election: sending his 7,000 employees […]

Who Owns Employees’ Social Media Accounts?

October 11th, 2012 by JBWK

In an interesting case in Pennsylvania, a federal court is testing how far an employer’s control over its employees’ social-media accounts can go within legal limits. In the case, the employer made its employees set up LinkedIn accounts using their company email addresses and giving the employer their password. The LinkedIn pages all followed a […]

Update on Social-Media Password Requests

October 11th, 2012 by JBWK

Several months after employers were taken to task for demanding applicants’ social-media passwords, three states have passed legislation regulating the process. Two states, Maryland and Illinois have fairly strict rules with few or no exceptions. The third, California, recently passed its version, which allows employers more leeway. It provides an exception for employers to investigate […]

A Warning for Healthcare Employers

October 6th, 2012 by JBWK

An interesting charge from the EEOC came out of Wisconsin last week. The agency filed a lawsuit alleging a hospital system had a practice of reviewing applicant’s records on file with the hospital in connection with extending job offers. The applicant in the recently filed suit had her job offer rescinded after the hospital reviewed […]

Supreme Court to Hear Employment Cases

October 3rd, 2012 by JBWK

The Supreme Court’s 2012-2013 terms opened this week, and it already has several employment law cases on the docket. It will rule on who may be a “supervisor” under Title VII and whether a collective FLSA claim can continue after the named plaintiff has settled, as well as further clarify how class-action claims are analyzed. […]

Reasonable Accommodation for Pregnancy?

October 2nd, 2012 by JBWK

Pregnancy occupies a strange status in employment discrimination law. It’s not a disability subject to the Americans with Disabilities Act, but it’s still illegal to discriminate against a female employee because she’s expecting. The only way to determine discrimination is to compare the treatment of pregnant employees with other employees who have temporary physical conditions […]

Fuzzy Math: How 93=89 in the 4th Circuit

September 30th, 2012 by JBWK

In an interesting reversal by the Fourth Circuit, a pro se plaintiff gets to move forward with his race and age discrimination claims. The plaintiff filed an EEOC charge and received a right-to-sue letter, a prerequisite to filing a lawsuit. Plaintiffs have 90 days from the date they receive the right-to-sue letter to file a […]

Group Healthcare Costs Up, Coverage Down

September 29th, 2012 by JBWK

Two new surveys show the changing role employment-based health insurance may play after the massive federal overhaul of health insurance. One found that group healthcare costs continued to rise; the other found that employer-based coverage is declining. Interestingly, even though employment-based coverage is dropping, the overall percentage of people insured is rising based on increased […]

NFL Refs Back on Field After Pension Fight

September 28th, 2012 by JBWK

After weeks of poor calls on the field, NFL referees are back on the field. The main driver? An agreement on whether refs would continue to participate in pension plans or switch to defined contribution 401(k) plans. Like many employers, the refs will now phase out of the generous pension plans offering fixed income for […]

So You’ve Violated the NLRA

September 23rd, 2012 by JBWK

With all the news about social media policies and the National Labor Relations Board delving into topics it’s long ignored, it’s good to look at the consequences of having an unlawful policy. Take an example: an employer has a social media policy completely prohibiting employees from discussing working conditions online. It violates the National Labor […]

Does Money Matter?

September 22nd, 2012 by JBWK

An interesting article in the Wall Street Journal highlights not only a technological shift, but also sparks an interesting question: will a raise entice a valued employee to stay? The article examines complex computer models fed with data from former employees. Looking at the collected data, the computer model will look at why employees leave, […]

Walk the Walk

September 20th, 2012 by JBWK

Because according to one federal appeals court, simply talking the talk isn’t enough to avoid $3.5 million in punitive damages. In a hostile work environment case, the Seventh Circuit said Chrysler was so relaxed in its response to three years of severe harassment that punitive damages were warranted. It took few concrete steps to actually […]

IRS Awards Whistleblower $104 Million

September 14th, 2012 by JBWK

In the largest tax whistleblower payout ever, the IRS awarded a former UBS employee $104,000,000 for helping uncover the bank’s illegal role in helping U.S. citizens evade taxes. He was just released from more than two years in prison for his role in the scheme. The investigation he triggered resulted in UBS paying $780 million […]

NLRB Dings Employer…Again

September 14th, 2012 by JBWK

This time it’s Costco. One of its policies read: Statements posted electronically…that damage the company, defame any individual, or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement may be subject to discipline, up to and including termination of employment. The NLRB said the policy was too broad, and that […]

401(k) Fee Disclosures and Small Business

September 13th, 2012 by JBWK

A recent survey of small businesses (100 employees or less) found that more than two-thirds weren’t prepared to answer employee questions about 401(k) plan fees and more than four out of five were unsure of what to do with the fee-disclosure information they received. The new Department of Labor rules are supposed to make plan […]

The FMLA and Overtime Damages

September 7th, 2012 by JBWK

A helpful reminder in valuing backpay under the FMLA: Don’t forget overtime. A recent federal appeals court ruled that a former employee–who was fired in violation of the Family and Medical Leave Act–could recover overtime wages as part of his remedy. The trial court allowed an average of 6.5 hours of overtime per week for […]

“Indefinite Reprieve” Is Not a Reasonable Accommodation

September 6th, 2012 by JBWK

Coming on the heels of the EEOC’s insistence that post-FMLA leave can be a reasonable accommodation under the ADA, one federal appeals court has provided some relief for confused employers. The Tenth Circuit Court of Appeals ruled last week that a post-FMLA “indefinite reprieve” from work is not reasonable. The court ruled that the employee […]

New Fair Credit Reporting Act Summary of Rights

September 6th, 2012 by JBWK

The Consumer Financial Protection Bureau, a product of the recent Dodd-Frank financial overhaul, issued a new Summary of Rights under the Fair Credit Reporting Act. Under the Fair Credit Reporting Act, employers who intend to make adverse employment decisions based on credit reports or background investigations from consumer reporting agencies must give employees and applicants […]

The NFL’s Biggest Threat?

September 2nd, 2012 by JBWK

Players’ Union talks? Bounty programs for hard-hitting players? Cheating scandals? How about workers’ comp? Via ESPN, former players seeking workers’ comp are forcing teams to foot massive insurance bills and defend mounting lawsuits. A growing class of former players claims anything from career-ending hits to cumulative brain trauma entitles them to workers’ comp benefits, often […]

Beware of Online “Advisors”

August 30th, 2012 by JBWK

With more and more online tools–such as the DOL’s Wage and Hour “elaw Advisors“–designed to help employers comply with federal employment laws, it’s tempting to rely on them for quick answers. But that may turn costly. The online “advisors” ask simple “yes” or “no” questions to answer, for example, whether certain employees are exempt from […]

Employee Fired for 50-Year-Old Prank

August 29th, 2012 by JBWK

Richard Eggers’ story is making internet rounds as a lesson in unintended consequences. Wells Fargo fired him from his customer-service job of seven years because of his criminal conviction. The bank cited new Dodd-Frank banking legislation that imposes tougher rules on banks hiring employees with checkered pasts. His crime: using a cardboard cutout of a […]

Are Your Interns Really Interns?

August 26th, 2012 by JBWK

Over at Forbes, a useful piece on determining whether your interns are really interns–or whether you need to cough up minimum wage for all of them. While there’s a six-factor test to determine whether interns are truly interns–and therefore unpaid–the bottom line is this: do you use interns to perform productive work that eliminates the […]

Telecommuting as a Reasonable Accommodation

August 25th, 2012 by JBWK

Although federal courts in Virginia typically find an employee’s physical presence at work to be an essential job function under the ADA, there are some instances where it’s not. Enter telecommuting as a reasonable accommodation. A federal court in Ohio highlighted this recently, ruling that a county must consider telecommuting as a reasonable accommodation on […]

And Now the EEOC?

August 22nd, 2012 by JBWK

We reported last week that the National Labor Relations Board struck down an employer’s policy asking employees not to discuss pending investigations. Now, the Equal Employment Opportunity Commission seems to be heading down the same road. The EEOC’s Buffalo field office recently notified an employer that it “flagrantly” violated Title VII by adopting a policy […]

Firing Employees on FMLA Leave

August 19th, 2012 by JBWK

You might bring unwanted trouble on yourself, but you can do it. In a recent example, the Third Circuit Court of Appeals ruled that an employer legally fired an employee who abused her FMLA leave. The employee claimed she couldn’t work at all, but continued working at her part-time job from home while on FMLA […]

NLRB’s Reach Expanding Yet Again?

August 14th, 2012 by JBWK

The NLRB has been extremely busy lately, dealing with posting of unionization rights, social media policies, at-will employment, and now confidentiality of internal investigations. In a July ruling, the NLRB held that an employer’s practice of asking employees not to discuss ongoing, internal investigations with other employees violated the National Labor Relations Act. The employer […]

Facebook “Like” Ruling Appealed

August 14th, 2012 by JBWK

After generating nationwide debate over the First Amendment implications of a Newport News Federal District Court’s ruling that an employee “liking” a Facebook post is not protected speech, the Fourth Circuit Court of Appeals will now hear the issue. A few months back, the federal judge ruled that employees fired after “liking” a Facebook post […]