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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog


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 ›

Sixth Circuit Refines Heightened Standard Applicable To Discrimination Cases In The Context Of Reduction In Force

For years, employers executing reductions in force have been able to rely upon the heightened standard imposed on plaintiffs alleging discrimination in the selection process to defeat those lawsuits.  A plaintiff bringing such a case in the Sixth Circuit could not establish a prima facie case of discrimination simply by alleging that they were part of a protected class, suffered an adverse employment action, were qualified for the job, and that the job was subsequently given to a person outside the protected class.  In the context of a reduction in force, a plaintiff had to present additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled him out for discharge for impermissible reasons.  See Barnes v. GenCorp, 896 F.2d 1457 (6th Cir. 1990).  Importantly, under Barnes a reduction in force occurred only where the employee was not replaced after discharge, and assigning a discharged employee's duties to a current employee in addition to his or her current duties was not considered a "replacement."  Id. at 1465.  On April 28, 2014, the United States Court of Appeals for the Sixth Circuit rendered its decision in Pierson v. Quad/Graphics Printing Corp., refining the definition of "replacement" in a way that significantly undercuts employers' ability to rely on the heightened standard set forth in Barnes.  Read More ›

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 ›