Dykema Gossett PLLC

Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog


EEOC Fires Shot At Hobby Lobby Ruling

Hot on the heels of the United States Supreme Court’s landmark ruling in Hobby Lobby, new guidelines issued by the EEOC caution employers against dropping contraceptives from employee health insurance plans or risk facing liability under Title VII of the Civil Rights Act for gender discrimination. 

In June, in Burwell v. Hobby Lobby Stores, the United States Supreme Court ruled that the Religious Freedom Restoration Act (RFRA) protects closely held corporations from being compelled by the Affordable Care Act to provide certain forms of contraceptive coverage to its employees, if such coverage violates the owners’ sincerely held religious beliefs.  The following day, the Supreme Court issued rulings that suggested that the right not to provide contraceptive services extends beyond the specific methods at issue in the Hobby Lobby decision.  In the wake of these rulings, the question of whether employers will eliminate all contraceptive coverage from the insurance plans offered to their employees remains to be seen.   Read More ›

Would You Like Franchisors With That? – NLRB May Super-Size Complaints Against Restaurants Bearing Name Of Fast Food Giant

Leadership within the NLRB wants to bring fast food franchisors to the table to answer for charges lodged against franchisees.  On July 29, 2014 the General Counsel of the NLRB, Richard Griffin, announced he had issued an advice memorandum to the NLRB’s Regional Directors concerning dozens of remaining charges against McDonald’s franchisees for which the NLRB had authorized complaints to be issued.  In this advice memorandum, the General Counsel takes the position that McDonald’s USA, LLC, the franchisor, should be named as an additional respondent in any complaints, reasoning it is a joint employer with each of the various franchisees, already named. 

While the memorandum has not been made public and is not considered law, it certainly reveals the direction and strategy of the NLRB.  The agency purports to stretch the concept of joint employer in a manner that could have far-reaching implications beyond fast food, and perhaps also beyond the franchisor/franchisee model.  As unions seek to organize new industries, including the franchise restaurant industry, this new directive at the NLRB makes clear the stakes are being raised.  Battles will now begin in earnest over how many and what sorts of entities will be joined into charges, complaints and possible bargaining obligations.  The fight over joint employer status will involve analysis and rulings about who has control over what employees and how much.  The legal battles are just beginning on this front, and other industries should beware. 

EEOC Issues New Enforcement Guidance On Pregnancy Discrimination And Related Issues, Despite Strong Dissenting Opinions By Two Commissioners

On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” along with a question and answer document and a “Fact Sheet for Small Businesses: Pregnancy Discrimination.”  The guidance was issued over the strong objection of Commissioners Constance Barker and Victoria Lipnic, who both released public statements in opposition.  Read More ›

Sixth Circuit Deals Fatal Blow To RICO Claims Based On Alleged Conspiracies To Deny Workers' Compensation Benefits

The Sixth Circuit recently issued a decision solidifying the rule that an employee cannot establish a valid claim under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1961 et seq. (“RICO”) based upon an employer’s alleged introduction of false evidence in an effort to defeat an employee’s claim for workers’ compensation benefits. In Brown v. Ajax Paving Indus., Inc., 2014 U.S. App. LEXIS 9187 (6th Cir. May 19, 2014), Plaintiff Jay Brown claimed that he suffered an injury while working on his job.  He sought workers’ compensation benefits, and his employer, Ajax Paving Industries, Inc., disputed the claim for benefits and introduced medical testimony suggesting that the injury did not occur while on the job, but instead occurred outside of work.  The parties settled the worker’s compensation matter and that should have been the end of the story, or so one would think.  Not so in this matter. Read More ›

Department of Labor Announces Proposal to Revise the Definition of “Spouse” Under the FMLA to Include Same-Sex Couples

On June 20, 2014, the Department of Labor announced a Notice of Proposed Rulemaking proposing to revise the definition of “spouse” under the FMLA following the Supreme Court’s decision in United States v. Windsor, which held section 3 of the Defense of Marriage Act to be unconstitutional.  The FMLA generally provides that eligible employees are entitled to unpaid leave in order to care for the employee’s spouse, if the spouse (1) has a serious health condition, (2) is a military member deployed to a foreign country; or (3) is undergoing medical treatment related to an injury sustained on active duty.  In its Notice of Proposed Rulemaking, the DOL suggests two major changes to the definition of spouse.  First, it specifically includes same-sex marriages.  Second, it proposes to look where the marriage was entered into, rather than an individual’s state of residence, such that a spouse will be covered by the FMLA if the marriage was entered into in a State that recognized the marriage.    Read More ›

Summer Is Here – Now Is A Good Time To Review Intern Programs

The popularity of unpaid intern programs—interest in which spiked during several of the economic downtowns in recent years—may be waning as they continue to come under scrutiny by the Department of Labor (“DOL”) and courts. 

In April 2010, the Wage and Hour Division of the DOL issued Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act, which was intended to provide general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act (“FLSA”) for the services they provide.

The guidance applies to “for-profit” private sector employers, noting that unpaid internships in the public sector and for non-profit charitable organizations are “generally permissible.”  The test has a number of requirements, all of which must be met in order for the internship not to be regarded as employment.  Employers have found a few of the criteria—namely, that the intern is not entitled to a job at the conclusion of the internship, the employer and intern understand that the intern is not entitled to wages, and the intern does not displace a regular employee—not too unwieldy to overcome as long as it is clear that the internship is not a trial period for employment and is of fixed duration. Read More ›

Minnesota's Women’s Economic Security Act: What To Know and How to Comply

Hailed by supporters as a necessary step towards increased economic equality, the Women’s Economic Security Act (“WESA”) became law in Minnesota on May 1, 2014.  WESA passed the Minnesota House and Senate with broad bipartisan support, and many believe that the statute will level the playing field for female employees across Minnesota.  Nonetheless, as with any law that expands employee rights, WESA also imposes additional obligations on companies that employ individuals within the state.  As a result, it is important for employers to understand the specific rights that WESA creates, as well as the steps that they must take in order to comply with the new law.   Read More ›

New Technology Nightmare -- Right to Telecommute As A "Reasonable" Accommodation Under the Americans With Disabilities Act

Until recently, employers were fairly confident that under the Americans with Disabilities Act (“ADA"), except in extraordinary circumstances, an employer had no obligation to accommodate an employee’s disability by allowing him/her to work from home.  Based upon existing precedent, the following principles seemed well established:

  • Attending work on a regular, predictable schedule is an essential function of a job.
  • Excessive absenteeism renders an individual unqualified under the ADA as a matter of law, except in the unusual case where an employee can perform all work-related duties at home.
  • An employer need not accommodate erratic or unreliable attendance.
  • The courts must consider the employer’s business judgment when determining the essential functions of the job.

Based upon what the Sixth Circuit Court of Appeals recently described as an “advancement of technology,” each of these principles is now under attack.  Equal Employment Opportunity Commission v. Ford Motor Company, Sixth Circuit No. 12-2484  (2014)  (“EEOC v. Ford” or “Ford”). Read More ›

EEOC Clarifies Position On Employer Obligations To Accommodate Religious Garb and Grooming At Work

The number of lawsuits and charges over the past few years involving claims of religious discrimination is on the rise. In March, the Equal Employment Opportunity Commission ("EEOC") issued a "rights and responsibilities" document regarding acceptable religious dress and grooming practices, an area of particular focus in several of the recent cases.  The default position of the EEOC is that in most cases, employers must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices.  As for what constitutes a “religious” practice or belief, the EEOC casts a wide net to include not only practices followed by traditional organized religions, but also religious beliefs that, for example, are “new”, “uncommon” or “not part of a formal church or sect.”  Read More ›

There's A New Sheriff In Town: Senate Confirms New Wage and Hour Administrator

It took only 5 and a half years, but the Obama administration has finally filled the position of the DOL's Wage and Hour Administrator.  Past nominees never made it through the confirmation process, but due to a compromise on the filibuster rule and other political factors, on Monday the Senate confirmed the nomination of David Weil to be the new Wage and Hour Administrator.  

With this appointment, and for the first time since the President was elected, the seats for all top DOL executives dealing with wage and hour matters are now filled, i.e., the Secretary of Labor, the Solicitor of Labor, and the Wage and Hour Administrator.   The Wage and Hour Administrator oversees the division of the Department of Labor responsible for enforcing the Fair Labor Standards Act, the Family and Medical Leave Act, the Service Contract and Davis Bacon Acts, and various laws dealing with migrant farmworkers and immigrants. The President now is clear as to the direction he wishes for the Department of Labor to take: the Administration is to focus on enforcement.  In fact, "enforcement" may be an understatement; the direction being given is more along the lines of "aggressive enforcement."  In other words: "Take no hostages!"  Read More ›