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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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States Hopping on the Department of Labor’s Misclassification Bandwagon

On August 31, 2016, North Carolina became the latest state to join the U.S. Department of Labor’s (“DOL”) expansive efforts to reduce the misclassification of employees as independent contractors—making it the 33rd state participating in the DOL’s collaborative effort to reduce what it views as rampant misclassification.  Through its administrator’s interpretation, the DOL has issued guidance in its renewed efforts to combat misclassification. The DOL's initiative is a concerted effort to investigate and pursue companies that misclassify employees as contractors to avoid various tax and/or benefit burdens. The initiatives have resulted in a significant number of companies being investigated by the DOL and the payment of significant back pay amounts to employees. Several states have formally adopted the DOL’s heightened scrutiny in this area and have agreed to work closely with the feds to reduce misclassification, thereby raising the stakes for employers who utilize these arrangements. Read More ›

NLRB Continues to Make Non-Union Employers Nervous

Last month, the National Labor Relations Board issued two more significant decisions reminding employers – unionized and non-unionized alike – that they may indirectly be subject to the National Labor Relations Act in ways previously unrealized. They did so by making it more difficult for employers using contracted staff or buying the assets of unionized employers to avoid either an obligation to bargain with unions representing the staffing company or predecessor’s employees, or even being locked into the terms unions may have had with those employers upon buying the assets of another employer. Read More ›

Making It Count—When Employer Harassment Policies Make the Difference

The old axiom that “the best offense is a good defense” is especially true in the context of sexual harassment lawsuits, where an effective anti-harassment policy and complaint procedures are a potent tool in shielding employers from liability for supervisors’ misdeeds. Indeed, these measures can make the difference between a costly verdict or a victory at summary judgment. A recent Fifth Circuit Court of Appeals case, Pullen v. Caddo Parish School Board, highlights the importance of effectively implementing and communicating an employer’s policies and procedures.

In Caddo Parish School Board, Pullen worked at the Caddo Parish School Board (the “Board”), first in the purchasing department and later in human resources. She claimed that her supervisor in the purchasing department verbally harassed her, touched her in an unwelcome manner, and showed her inappropriate photos. She also alleged that, even after she transferred to another department, her supervisor continued to visit her and made additional inappropriate comments. Pullen never reported her supervisor’s behavior to any other employee, but eventually filed a lawsuit claiming that her supervisor’s actions constituted hostile work environment sexual harassment.  Read More ›

Chicago City Council Passes Mandatory Paid Sick Leave Ordinance – What Employers Need to Know

In a first of its kind for Illinois,on June 22, 2016, the Chicago City Council passed the Paid Sick Leave Ordinance, making Chicago the latest in a wave of mandatory paid sick leave ordinances around the country.

Chicago’s Ordinance, which becomes effective next year on July 1, 2017, would require most Chicago employers to provide the following:

  • Employees accrue paid sick leave (“Paid Leave”) of at least one hour for every 40 hours worked, up to a maximum of 40 hours per 12-month period.
  • Employees can carry over up to half of their accrued Paid Leave, up to a maximum of 20 hours, from one year to the next.
  • For employers that are covered by the Family and Medical Leave Act (“FMLA”), employees may carry over up to 40 hours of unused Paid Leave. An employee who uses the carried over 40-hours of FMLA leave for FMLA covered purposesis entitled to use an additional 20 hours of accrued Paid Leave in the same 12-month period, increasing the employer’s Paid Leave obligation to 60 hours.
  • Covered “family members” includeindividuals related by blood or whose close association with the employee is the equivalent of a family relationship.

Coverage

The ordinance would apply to any individual (including partnership, association, corporation, limited liability company, business trust, or any person or group of persons) that gainfully employs at least one eligible employee and maintains a business facility within the geographic boundaries Chicago. The ordinance exempts employers who provide their employees paid time off in an amount and manner that meets or exceeds the ordinance’s minimum standards and requirements.

The ordinance defines “employee” to cover any individual permitted to work by an employer who works in Chicago for at least 80 hours in any 120-day period. The ordinance excludes a number of workers from coverage, including certain employees employed in agriculture or aquaculture, outside salesmen, members of a religious corporation or organization, and any employee working in the construction industry who is covered by a bona fide collective bargaining agreement. Read More ›

The New Overtime Regulations Are Now Official

There’s no longer a basis to speculate or read or ignore the rumors. The Department of Labor (DOL) has finalized its changes to the regulations governing who may be exempt from being paid overtime. The changes will still be dramatic in terms of the number of employees impacted, but employers’ worst fears as to what they might contain did not quite materialize. Read More ›

New Federal Defense of Trade Secrets Act Requires Employers to Re-Examine Employee Confidentiality Agreements

This week, President Obama signed the Defense of Trade Secrets Act (“DTSA”) into law, providing owners of trade secrets new federal protections against trade secret misappropriation. The new law has several features which will be discussed (and inevitably litigated) over the months and years to come, including a provision allowing courts to issue ex parte seizure orders of property containing misappropriated trade secrets, a definition of trade secrets broader than the definition in the Uniform Trade Secrets Act (UTSA), and a definition of misappropriation narrower than the one in the UTSA. For employers, however, a provision of the act may require that longstanding confidentiality agreements be re-examined. Read More ›

Accommodation of Religion in the Workplace: A Primer

Of the various types of discrimination employers have known they must not commit for 50 years, discrimination based on religion remains one of the most challenging. Unlike race, gender, age and similar “immutable” characteristics, religion is more than what someone is; it is also what someone practices and believes. Therefore, Title VII of the Civil Rights Act of 1964 sometimes requires that employers treat people differently because of their religion. In further contrast, one does not “preach” an immutable characteristic by trying to convince others to change race, age, or gender, but many feel comfortable, or even obligated, to share religious views with others and possibly even try to convert them. The challenge of accommodating religious practices without fundamentally altering the workplace keeps employers and their HR teams up at night. Here are some practical tips for understanding and handling these sometimes conflicting challenges. Read More ›

Employers Beware: Employees May Disparage You Without Risking Their Jobs

On March 25, 2016, the U.S. Court of Appeals upheld a finding by the National Labor Relations Board (NLRB) that Jimmy John’s sandwich makers were wrongfully terminated after posting hundreds of signs insinuating that the sandwiches they make could make customers sick. According to the NLRB and the court, those employees were engaging in concerted activities protected under the National Labor Relations Act (NLRA).  MikLin Enterprises v. NLRB, Case No. 14-3099 (8th Cir. Mar. 25, 2016). Read More ›

Supreme Court Upholds Sampling in FLSA Cases

On March 22, 2015, the United States Supreme Court issued an opinion in Tyson Foods, Inc. v. Bouaphakeo, making it easier for plaintiffs to maintain class actions under the Fair Labor Standards Act, at least in some contexts. Specifically, at least in some donning and doffing contexts, courts may permit plaintiffs to prove their cases through the use of statistical sampling. For a detailed discussion of this case and its impact, as written for the American Bar Association by one of our employment law partners – Robert Boonin, click here.

EEOC Files Landmark Lawsuits Alleging Sexual Orientation Discrimination

It is not uncommon for the Equal Employment Opportunity Commission (EEOC) to push the envelope by taking positions in litigation that exceed the plain language of the federal statutes that it is charged to enforce.  Indeed, in its 2013-2016 Strategic Enforcement Plan, the EEOC identified addressing of emerging and developing issues as a priority, specifically mentioning as one of those issues is the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”  On Tuesday, the EEOC took the next step in prosecuting its Strategic Enforcement Plan when it launched a pair of federal lawsuits alleging discriminatory employment practices based on sexual orientation,  -- prime examples of the agency’s tendency to interpret statutes as broadly as possible and beyond what Congress intended. Read More ›