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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog


Silence Just Became More Expensive: Trump Tax Reform Requires Employers to Choose Between Tax Deduction and Confidentiality of #MeToo Settlements

Much of the media’s coverage of the recent tax reform has focused on the benefits to corporate America. However, one provision of the Tax Cuts and Jobs Act of 2017 that has received little coverage is perceived to address concerns raised in the #MeToo movement regarding confidential settlements of sexual harassment claims. Specifically, the Act added a new section to the Internal Revenue Code, which prohibits deductions for amounts paid to settle sexual harassment and sexual abuse claims when the settlement is subject to a nondisclosure agreement. In effect, the Act requires an employer to choose between a tax deduction and confidentiality of the settlement. Given that confidentiality is often a critical component of a typical employment settlement agreement, particularly for claims that may involve salacious allegations, employers now face a more difficult calculus. At a minimum, employers should anticipate that sexual harassment claims will be more costly to settle if the agreement includes a non-disclosure provision. Read More ›

Employers Face Risks Despite State Sexual Harassment Allegations in the Post-Weinstein Era, Placing Higher Emphasis on Internal Investigations

The 24-hour news cycle has been dominated by coverage of sexual harassment allegations against celebrities, politicians and corporate executives in the wake of the salacious accusations levied against Hollywood mogul Harvey Weinstein. Employers across the country can be certain their employees are glued to real-time news feeds and evaluating their own previous experiences in and around the workplace with an entirely new perspective. A new bright light is shining on the issue of workplace harassment and society finds itself in the midst of a social movement aimed to encourage individuals to come forward and report (particularly on social media platforms) their personal accounts of experiences relating to sexual harassment. Many of these allegations go back decades, which has lawyers and non-lawyers alike asking what the legal implications are for allegations that go well beyond any applicable statute of limitations. Not all “stale” claims are necessarily time barred, and thus employers must recognize their obligations to investigate and ameliorate even older claims of harassment. Read More ›

The DOL’s Wage & Hour Division “Dusts-Off” Shelved Opinion Letters

In 2009, shortly after the prior administration first took office, it pulled-back 17 Wage & Hour Opinion Letters that were finalized near the end of the Bush Administration. On January 5, 2018, the DOL republished all of those Opinion Letters, and by doing so, the DOL has firmly gotten back into the Opinion Letter business. Read More ›

U.S. Department of Labor Revision of Intern Test Provides Clarity to Employers

On Friday, January 5, 2018, the U.S. Department of Labor (“DOL”) adopted a revised view of what constitutes an “intern” for private sector employers. In short, this revised guidance makes it much easier for employers to take on unpaid interns without incurring substantial risk that the DOL will later find those supposed interns actually were employees who are entitled to back pay. Going forward, the DOL will use the “primary beneficiary” test, which was adopted by several appellate courts to determine whether interns are employees under the FLSA. Read More ›

The New NLRB Takes Major Swings at "Obama Board" Initiatives

Last week was anything but dull at the National Labor Relations Board. The Board only recently shifted from having a Democratic majority under President Obama to a Republican majority under President Trump, and a new General Counsel has just been appointed. Further, the Chair appointed by President Trump, Philip Miscimarra, left the Board this past Saturday. Chairman Miscimarra—who was a Republican member of the Obama Board—was a major dissenter with respect to many initiatives of the Obama Board, initiatives which not only caused considerable consternation among those in the business community, but also reversed legal doctrines that had been in place for decades. Based on what happened last week, it appears that the sun, the moon and the stars are aligned to have many of those developments neutralized and have the law return to its prior and long-established norm. Read More ›

A Michigan Employer Avoids Sexual Harassment Liability Through Proper Investigation and Employee Discipline

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment as a form of discrimination based on sex. A recent spate of high-profile sexual harassment claims has brought increased public awareness of sexual harassment in the workplace. As a result, many have predicted a sharp increase in sexual harassment claims in the near future. Whether or not this prediction comes to fruition, employers must have policies and measures in place which address complaints of sexual harassment and prevent further harassing behavior. Appropriate responses to sexual harassment claims serve to protect employees and help to defeat hostile work environment claims, as illustrated in Beauvais v. City of Inkster, 2017 U.S. Dist. LEXIS 185577 (E.D. Mich. Nov. 9, 2017). Read More ›

Listen Closely, Managers Need Training on Family and Medical Leave Act Procedures

It is well known that the Family and Medical Leave Act (“FMLA”) is a nuanced law with many technical steps and requirements within the governing regulations. One of the most complex issues is knowing when an absence may be or is FMLA-qualifying, and how to respond. This is a difficult determination for one who has worked with the FMLA and received training on the issue. It is an even more perplexing determination for many managers who have no idea that an employee may be eligible for FMLA leave based on a phone call notifying the company of an absence—whether that absence is for a few or several days.

The case of Boadi v. Center of Human Development, Inc. and Candy Pennington illustrates the consequences of a manager’s failure to properly respond to a potentially FMLA-qualifying event, and demonstrates the importance of training a company’s front-line managers on how to handle these situations. Read More ›

Two New California Employment Laws To Take Effect in January

On October 12, 2017, Governor Brown signed two new laws that take effect January 1, 2018, that will affect California employers. Senate Bill (SB) 63 mandates that small businesses provide 12 weeks of baby bonding to employees. Assembly Bill (AB) 168 bans employers from inquiring about a job applicant’s salary history. Read More ›

Sixth Circuit Rules That Consistent Enforcement of Zero-Tolerance Policy Wins the Day

Earlier this week, a unanimous Sixth Circuit Court panel affirmed a district court’s summary judgment ruling in favor of an employer and a union where two terminated employees asserted they had been selectively discharged under a strict company policy and their union failed to fairly represent them when declining to pursue arbitration. Read More ›

Seventh Circuit Confirms That Americans With Disabilities Act Does Not Require Extended Medical Leave as Accommodation

The Americans with Disabilities Act (ADA) does not require employers to give workers more leave after their Family and Medical Leave Act allotment runs out, the Seventh Circuit said recently. The Court ruled that employers could fire a worker who requested an extended leave shortly before his scheduled return. It affirmed its prior holdings on this issue, holding that a multi-month additional leave is not a reasonable accommodation under the ADA. In this murky area for employers, the Seventh Circuit provided a degree of certainty regarding the interplay between the ADA and FMLA. Read More ›