Industry News

In 2012, the United States Supreme Court, in United States v Windsor, struck as unconstitutional, Section 3 of the Defense of Marriage Act (“DOMA”), which sought to define the words “marriage” and “spouse” as meaning only legal unions between one man and one woman.

As reported in a previous elert, the number of lawsuits alleging wage and hour violations under the Fair Labor Standards Act (FLSA) continues to increase, largely due to the fact that these claims have become easier to prove than other types of employment claims.

Late last month, the Sixth Circuit Court of Appeals – which encompasses the states of Kentucky, Michigan, Ohio, and Tennessee – found that there was a genuine issue of material fact as to whether an employee – who was not eligible for leave under the Family and Medical Leave Act (“FMLA”) – was nevertheless eligible for FMLA leave (and all of the rights and privileges that come with such leave) under a theory of equitable estoppel when the employee handbook contained a broader definition of FMLA eligibility than what the law required.

The Affordable Care Act was signed into law way back in 2010. By design, it provided time for employers, insurers, and others to adjust to its new mechanisms. But as the complexity of the law became more apparent, the government implemented regulations granting extensions on enforcement of many of its provisions. Employer penalties have been postponed until this year. Thus, employers should be mindful now and throughout the year of the following issues:

In light of the amount of time spent at work and the close relationships that invariably develop between co-workers, workplace romances seem inevitable. While some will survive through “sickness and in health,” others may not last until “death do us part.” Regardless of the end result, both situations can pose challenges for employers, who must decide how to manage the impact of a workplace romance on employee morale, workplace productivity, and legal liability.

We have long advised our clients that, to ensure the enforceability of restrictive covenants they require their employees to sign, the provisions should be tailored to protect the companies’ legitimate business interests. This is particularly important when requiring employees to sign non-compete agreements which are the broadest types of covenants and traditionally the most difficult to enforce. While some states, including Georgia, have made it easier in recent years to enforce such agreements, an ongoing case involving Jimmy John’s serves as a reminder that one size doesn’t fit all.

The start of a new year is a great time for new beginnings – including with your employment-related policies and practices. To help you in your efforts, here is a short checklist of items to consider for 2015. While this list is by no means comprehensive, acting on just these few, manageable items now can save you headaches later.

On December 18, 2014, U.S. Attorney General Eric Holder announced the Justice Department’s official position that the prohibition on sex discrimination provided by Title VII of the Civil Rights Act of 1964 extends to gender identity, including transgender employees and applicants. The DOJ’s new position on the issue of gender identity/transgender status directly affects state and local government employers, as Title VII grants enforcement authority to the DOJ over such employers. While this announcement reversed the position previously taken by the DOJ, Holder explained that “[t]he federal government’s approach to this issue has evolved over time.”

Last week, the National Labor Relations Board (“NLRB”) took official action to aid union organizing efforts and other employee concerted actions. In Purple Communications Inc., a divided NLRB held that workers have the right to use their employers' email system during non-working time for non-business purposes, including union organizing, overruling a decision to the contrary in 2007.

As another year draws close to an end, we hope that all of our clients and friends have much to celebrate. We are often asked during the holiday season about the potential risks of having holiday parties, and, as you can imagine, the conversation often finds its way to the issue of alcohol.

It's that time of year again! With the holidays just around the corner, businesses are hoping to close 2014 on a positive note and are in the midst of budgeting for 2015. This makes the holiday season a smart time for discarding old, outdated policies, and creating new, updated ones.

As we discussed more fully in our September 4, 2014 e-lert, the Equal Employment Opportunity Commission (“EEOC”) has set its sights on employers’ wellness programs, which many organizations have set up as a way of encouraging employees to adopt healthier lifestyles and improve productivity, reduce absenteeism due to illness, and control health insurance costs. The EEOC’s latest action against Honeywell International, Inc. (“Honeywell”) is evidence that the EEOC has no plans to wait and see whether the courts will agree with its position in the first round of cases asserting that aspects of such programs are unlawful.

Organizations that pay employees severance that is not otherwise owed under policy or prior agreement, often require employees to sign a separation agreement releasing all claims against the employer in exchange for the severance. Because of prior challenges to such agreements by the EEOC, those separation agreements now include a specific provision protecting employees' right to file EEOC charges and participate in EEOC investigations. While the EEOC has blessed (or arguably required) such provisions in the past, a recent wave of lawsuits filed by the EEOC signal that it now wants more.

We felt it would be beneficial to share some of the most common questions we are receiving from our clients about Ebola and their employees' fears about it. Although the specific circumstances of each employer may vary and call for a modified response, we hope this general information contributes to a measured and appropriate response to the issues raised by this developing situation.

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