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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog


OSHA Provides Interim General Guidance for Workers and Guidance for Workers in Fields at Increased Risk of Ebola Exposure

In a recently published Interim Guidance regarding the control and prevention of Ebola, OSHA  has provided interim general requirements and recommendations for workers whose duties are performed in circumstances that are known or reasonably suspected to be contaminated with the Ebola virus (e.g., due to contamination with blood or other potentially infectious material). OSHA differentiated such workers from those who have direct contact with persons with Ebola Hemorrhagic Fever. Read More ›

Retaliation under Title VII: A Three-Year Gap Is Not Enough to Refute Causation Under Certain Circumstances

In retaliation cases under Title VII of the Civil Rights Act, the question that frequently arises in evaluating the requisite element of causation is whether “timing is enough.”  Many courts have held that although temporal proximity between the protected activity and the adverse employment action is sufficient to establish a prima facie case, such close timing, standing alone, is insufficient to meet plaintiff’s ultimate burden of proof.  But in Malin v. Hospira, Inc.,___ F.3d ___, Case No. 13-2433 (August 7, 2014), the Seventh Circuit addressed the converse question.  The issue addressed in Malin was whether a three-year gap conclusively refuted a retaliation claim.  The appellate court expressly rejected the principle that “the passage of a particular amount of time between protected activity and retaliation can bar [a retaliation] claim as a matter of law.”  Slip op. at 2.   Read More ›

Sixth Circuit Limits Enforcement of Key Employment Contractual Waivers in FLSA Cases

Over the past few years, there has been considerable litigation over whether employees may contractually waive their right to bring class or collective actions against their employers.  For example, the NLRB in its D.R. Horton line of cases believes that arbitration agreements limiting employees in their right to bring collective or class actions are not enforceable since they arguably waive an employee’s Section 7 right to engage in concerted activities. The courts have not agreed with the NLRB, and applying the Supreme Court’s recent line of cases upholding arbitration agreements proscribing class relief, have held that the congressional support for arbitration vis-à-vis the Federal Arbitration Act is a stronger policy than other rights relating to the ability to seek class relief. Further, the courts have construed the FAA to hold that unless an arbitration agreement clearly permits the seeking of class relief through arbitration, such relief is not available – through arbitration or otherwise. See generally Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054-55 (8th Cir. 2013)(arbitration agreement containing class action waiver is enforceable in claim brought under FLSA); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 295-96 (class action waiver must be enforced pursuant to the U.S. Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)); Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 486 (2d Cir. 2013) (undisputed that arbitration agreement did not provide for arbitration agreement on class-wide basis); Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1134-36 (11th Cir. 2014) (arbitration agreement which waives collective claims is enforceable); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 558-61 (5th Cir. 2013) (class and collective action waivers are not inconsistent with the NLRA’s Section 7 concerted activity protections, and therefore such waivers in arbitration agreements between employers and employees are enforceable); Reed Elsevier, Inc. v. Crockett, 734 F. 3d 594, 600 (6th Cir. 2013) (where agreement is silent on the availability of class relief through arbitration, class relief is not available). See also Huffman v. The Hilltop Companies, LLC, 747 F.3d 391, 398 (6th Cir. 2014) (contract silent on right for bringing class claim in arbitration precludes the arbitration of class claims).   Read More ›

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 ›