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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog


From Student-Athlete to Employee: the NLRB Changes the Game

An unprecedented decision has opened the door for the unionization of college athletes.  On March 26, 2014, the Regional Director of Region 13 of the National Labor Relations Board, Peter Sung Ohr, ruled that most Northwestern University football players receiving scholarships are “employees” and therefore are entitled to choose whether to be represented for purposes of collective bargaining.  This decision could substantially impact the economics of athletic programs at private colleges and universities across the country, and it calls into questions long-held assumptions about the amateurism of the “student-athlete.”   While criticizing the decision, Senator Lamar Alexander (R-TN, former Secretary and Education, and former President of the University of Tennessee) summed up his concerns by stating:  “Imagine a university’s basketball players striking before a Sweet Sixteen game demanding shorter practices, bigger dorm rooms, better food, and no classes before 11 a.m.  This is an absurd decision that will destroy intercollegiate athletics as we know it.” Read More ›

The 12 Days of Medical Leave: Dealing with FMLA Abuse Around the Holidays

An employee asks to use vacation days near the holidays, but the request is denied due to the employee’s seniority level and the number of other employees who have already requested vacation time for the same dates.  Later, the employee requests FMLA leave to cover the same dates.  As another holiday season comes to a close, these facts may sound all too familiar to employers. 

Are the employers’ hands tied simply because the employee uses the magic word “FMLA,” or because she has submitted a doctor’s certification supporting her entitlement to leave?  No, employers can, and should, take several different actions to help minimize FMLA abuse.  Read More ›

Bah, Humbug! How To Throw The Company's Holiday Party Without Being Haunted By The Ghost of Future Lawsuits

No one questions the value of having a holiday party for employees.  Parties break down barriers between managers and staff and provide the company with an opportunity to express its appreciation for a year of hard work and dedication.  Unfortunately, holiday parties also provide opportunities for some individuals to engage in unacceptable behavior such as:

  • Having a few too many drinks;
  • Telling the boss what they think of his management style;
  • Telling the subordinate what the boss thinks about the way she looks, or the sexy way she dresses;
  • Taking the opportunity to dance too close, to hug, to kiss or to fondle that very special employee; or
  • Providing the CEO with the opportunity to include his latest and greatest off-color joke in his after-dinner toast to the employees.

While such behavior may not, in and of itself, be sufficient to sustain a claim for sexual harassment, it is certain that if there is a sexual harassment claim in the company’s future, each and every one of the embarrassing things said or done at the holiday party will be resurrected.  Short of appointing Ebenezer Scrooge to host the annual holiday party, there are a number of ways a company can discourage inappropriate behavior at the company party. Read More ›

The “n”-Word: (N)Ever Contextually Appropriate, In The Workplace?

Even if, as some have argued, the “n” word is culturally acceptable to some people in some contexts, does its intra-racial use in the workplace rise to the level of legal discrimination and/or harassment?  This is a topic of concern to employers grappling with workplace environments involving communications between people of the same race. Read More ›

Braced For Federal Government Shutdown: Agency Contingency Plans

Federal government agencies have identified the agencies and/or functions that will be active or inactive during the shutdown period.  Notably, the EEOC, DOL, and NLRB plans are identified below.


The EEOC Shutdown Contingency Plan In The Event Of Lapsed Appropriations identifies activities that will continue during the shutdown.  According to the EEOC’s Plan, select activities will continue while others will not. Read More ›

Application of Fair Labor Standards Act to Domestic Service – Final Department of Labor Rule

On September 17, 2013, the Department of labor (DOL) issued a final rule concerning application of the Fair Labor Standards Act (FLSA) to domestic service workers.

The Final Rule, effective January 1, 2015, contains several significant changes from the prior regulations, including: (1) the tasks that comprise “companionship services” are more clearly defined; (2) the exemptions for companionship services and live-in domestic service employees are limited to the individual, family, or household using the services; and (3) the recordkeeping requirements for employers of live-in domestic service employees are revised. Read More ›

If You Conduct Criminal Background Checks on Your Employees and Job Applicants, Now is the Perfect Time to Review Your Criminal Conviction Policies

As part of its Strategic Enforcement Plan, the EEOC aims to eliminate barriers in hiring, including employment policies and practices that discriminate against racial and ethnic groups.   In particular, the EEOC has increased its focus on the use of criminal convictions in employment, implementing new enforcement guidance on the issue in April 2012.  It did not take long for the Commission to take an even stronger position, filing suit in June 2013 against two employers alleging Title VII violations for utilizing criminal background check policies that resulted in employees being terminated or job applicants being screened out for employment.  The EEOC also settled a race discrimination charge regarding criminal conviction records.  These cases, as well as the EEOC guidance, provide significant insight into how the EEOC analyzes criminal conviction policies and practices.   Read More ›

California Appellate Court Provides Clarification On Criteria For Proper Classification As An Independent Contractor

On July 11, 2013, a California appellate court, in Beaumont-Jacques v. Farmers Group Ins., affirmed summary judgment in favor of an insurance company on the question whether a District Manager was properly classified as an independent contractor and not an employee. In so holding, the court provided clarification on the proper analysis for determining this important issue.

Why is this important?

California employers that misclassify workers as independent contractors face potential liability, which can include compensatory damages, stiff penalties and attorney’s fees. Read More ›

Illinois Appellate Court Ruling Imposes New Requirements on Employers Wishing To Issue Noncompetition Agreements.

The Illinois Appellate Court recently held that the promise of new employment alone provides insufficient consideration for post-employment restrictive covenants, such as non-compete and non-solicitation agreements, unless the new employee continues his or her employment for at least two years.

The new hire in Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327, signed an “Employee Confidentiality and Inventions Agreement” that included two-year non-compete and non-solicitation provisions. The Agreement stated that the restrictive covenants would not apply if the employee were terminated without cause during the first year of employment. The employee quit three months later, went to work for a competitor, and filed suit with his new employer seeking a declaration that the Agreement’s restrictive covenants were invalid and unenforceable. Read More ›

IRS Provides Formal Guidance Regarding Delay of Employer Mandate and Employer Reporting Requirements under ACA

On July 9th, the IRS provided formal guidance in IRS Notice 2013-45 that confirms the one-year delay of the Employer Mandate (Code Section 4980H) and the employer reporting requirements (Code Sections 6055 and 6056) under the Affordable Care Act.  These delays were first announced in a blog post on the Treasury and White House websites.  You can find Dykema’s alert on the delay here.  Notice 2013-45 confirms the delay in the Employer Mandate requirements and reporting requirements but encourages employers to voluntarily comply with the reporting requirements (once regulations are issued) during 2014 so that employers are in a better position when this is fully-implemented in 2015.  The Notice confirms that this delay on the Employer Mandate and reporting requirements has no effect on any of the other provisions of the Affordable Care Act, including employees’ access to a premium tax credit or the Individual Mandate.

Please contact Amy Christen or Gabe Marinaro for additional detail or questions regarding Notice 2013-45 or any other questions regarding the Affordable Care Act.