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June 2017 Archives

Trump Names a New Chair to Head the EEOC

President Trump has appointed Janet Dhillon, an attorney from the mega law firm, Jones Day, to serve as Chair of the Equal Employment Opportunity Commission. Ms. Dhillon's background with a law firm that represents businesses is expected to bring a better appreciation of employers and the challenges they face in complying with a growing number of civil rights laws and regulations in the workplace.

Employee Resignation - Employer Problem?

While there may be disagreement as to the current status of the work environment, most intelligent/competent people would agree that unemployment is low and the job market is beginning to tighten. The U.S. unemployment rate is at a sixteen (16) year low - 4.3%. In fact, there are 73 counties in the United States with unemployment rates of 2% or less based upon recent Bureau of Labor statistics. In this type of environment, talented Employees in your employ will be in higher demand, especially in a highly competitive industrial environment. Whether or not some have the perception of "manufacturing jobs" as "dirty work or low class" or that being "college educated" is an absolute requirement, the availability of experienced personnel with manufacturing skills is a growing talent shortage. While you may have in place Confidentiality, Non-Solicitation and Non-Compete Agreements, these documents, in and of themselves, do not totally protect an Employer. Employers must have a plan in place to address and deal with the unexpected departure of an Employee.

How Far Must an Employer go to Properly and Consistently Accommodate Employee Religious Beliefs?

A recent 4th Circuit Court of Appeals Case highlighted an example of the uncommon, unique, and potentially high-risk nature of religious accommodations in the workplace.  In U.S. EEOC v. Consol Energy, Inc., 2017 U.S. App. LEXIS 10385 (4th Cir.), a longtime employee and evangelical Christian retired under protest after his religious beliefs conflicted with his employer's new time keeping system, and their unwillingness to accommodate his religious objections to it.  A jury found the employer discriminated against the employee and awarded him almost half a million dollars in damages.

Final Warning to Implement Policy Changes for Minneapolis and St. Paul Sick Time / Safe Laws

In 2016, both Minneapolis and St. Paul passed city ordinances requiring private employers to provide their employees with paid sick time / safe time. These ordinances, despite opposition in the courts and in the legislature, go into effect on July 1, 2017. Many employers already provide their employees with paid time off; however, it is wrong to assume that more generous leave policys automatically satisfy these ordinances. Unfortunately, the majority of existing leave policies require modifications to fully comply with these new laws. Some of the more common areas that we have been addressing with clients, include:

Not if, But When: Employers Must Have Plan in Place to React to; Data Breaches Compromising Employee Records

Last year U.S. companies and government agencies reported 1,093 data security breaches, a 40 percent increase from 2015. The high-profile breaches include the hacking that affected more than 1,000 Wendy's Co. chains in July 2016. Just last week, McDonald's Canada announced that data of 95,000 of its job applicants were compromised in a cyber-breach. But, it's not only cyber hacking that can cause security breaches for companies; in 2014, the theft of unencrypted laptops at Coca-Cola, revealed sensitive information of about 74,000 current and former employees at the company. Last fall, a Boeing worker inadvertently exposed the personal data of 36,000 Boeing employees in four states by sending a spreadsheet to his spouse. According to a UK-based study, employee error, like that in the Boeing case, is most often to blame for data security breaches.

U.S. Department of Labor Withdraws Key Obama-Era Guidance on Independent Contractor and Joint Employment Status

On Wednesday, June 7, 2017, the U.S. Department of Labor (US DOL) issued a three sentence statement trumpeted by national news and happily noted by many employers. The recently-confirmed Labor Secretary, Alexander Acosta, personally announced that he has withdrawn the US DOL'S two Interpretations on two key legal issues worrying many businesses: joint employment and independent contractors.

Motor Carriers Continue to be a Hot Bed for Litigation!

Class action litigation against motor carriers continues to increase throughout the country. Whether it is owner operators challenging their "employee" status or whether new state laws interfere with their "prices, routes, or services" trucking companies have been in overdrive to figure out their next steps. Now comes another challenge -- making sure leases with owner operators are legal.

EPLI Coverage: If You Like Us, Let Them Know

Over the last ten years or so, Employment Practice Liability Insurance ("EPLI") has become a more and more common form of insurance coverage for businesses. Unlike traditional sources of coverage, which insure against risks associated with business operations, products, work injuries, hazards, etc., EPLI covers an employer against liability stemming from employment practices, such as damages (e.g., back pay, front pay, compensatory damages, attorney fees, etc.) for unlawful discrimination, wrongful discharge, whistleblowing, etc.

Ongoing Saga - Class Action Waivers

Since 2012, there has been an ongoing saga created by the National Labor Relations Board (NLRB) as to whether or not an Employer can require its Employees, as a Condition of Employment, to agree to arbitrate all Legal Claims against the Employer on an individual basis only, thereby waiving Class and Collective Action Procedures. The NLRB initially took issue with this type of action in the D.R. Horton, Inc. Case., 357 NLRB No. 184 (2012), in which it held that requiring Employees to waive the right to bring Claims in the form of a Class Action (or a Collective Action under the Fair Labor Standards Act) violated the guarantee of rights, as provided in Section 7 of the National Labor Relations Act, that allows Employees the right to engage in "protected concerted activity for mutual aid or protection". When that Case was appealed to the Fifth Circuit Court of Appeals, the Fifth Circuit denied enforcement of the Board's Order in the D.R. Horton, Inc. Case. Subsequently, the NLRB issued another Decision with a different Employer (Murphy Oil USA, Inc., 361 NLRB No. 72 (2014)) reaching the exact same results - that Class Waivers in Arbitration Agreements, as a Condition of Employment, unlawfully interfered with Employees' rights to engage in "protected and concerted activity" under the National Labor Relations Act. That ruling was again rejected by the Fifth Circuit on Appeal.

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Wessels Sherman Joerg Liszka Laverty Seneczko P.C.

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