Category Archives: Employment Practices Liability

Bathroom (Unpaid) Break: FLSA Foul Up

A dispute over unpaid bathroom break time at the office has resulted in an employer flushing away some $1.75 million as a result of violating the FLSA. The case arose when the Labor Department filed suit against a publisher after discovering that its employees were not earning the $7.25 hourly minimum wage during “personal breaks.” Pursuant to the employer’s policy, employees were required to clock out while using the bathroom, getting a drink or similar breaks.

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Professional Liability for Employee Misconduct

Professionals are often entrusted with access to personal and financial information from their clients. Professionals take great care to ensure that they protect this information from disclosure and that they comply with ethical guidelines regarding proper use of client funds. However, even when professionals fully comply with the rules, there may be occasions where employees or other individuals who have access to the information through their professional employer use it for an improper purpose. While professionals cannot always prevent employee misconduct, the actions they take to remedy any misdeed can often mean the difference in assessing personal liability.

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Liability for Improper Use of Database

Many professionals have access to online databases that store information not readily available to members of the public. These databases are a valuable tool for professionals who need additional information about a person for litigation purposes or for other lawful use within the course and scope of their professional practice. While these databases are only intended to be used for professional use, it is generally possible to access them for non-work-related purposes. This improper use of otherwise legitimate databases raises potential civil and criminal repercussions for the professionals.

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The DOJ on D&O: What You Need to Know

In September the Department of Justice released its new directive on individual accountability for corporate wrongdoing in a revived effort to fight corporate fraud. The “Yates Memo” by Deputy U.S. Attorney General Sally Quillian Yates, outlines the DOJ’s policy on targeting and pursuing corporate executives in cases of corporate wrongdoing. With the DOJ’s new guidelines companies should be taking a fresh look at their D&O insurance.

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Fashioning Employee Schedules: Employees Question Compensation Practices

Technological advancements have impacted employee scheduling in certain industries. Notably, employers with access to real-time data that suggest the level of expected business on any given day may require employees to be "on call." But, in a recent lawsuit against clothing retailer Forever 21, employees allege they’ve been subjected to “exploitative” scheduling practices regarding so-called “on call” shifts. Comparable suits have recently been filed against other fashion retailers like Victoria’s Secret and BCBG Max Azria, regarding similar policies.

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Religious Objectors: Employer’s Duty to Make Religious Accommodations

Kentucky County Clerk Kim Davis was recently jailed due to her refusal to issue marriage licenses to same sex couples. In other news, a flight attendant refused to serve alcohol due to her religious beliefs. The public reaction to both situations was intense and the debate well-publicized. These events also highlight a new wave of confusion regarding the requirements facing employers with respect to religious accommodations. The answer for employers can differ widely depending upon the industry, jurisdiction, legislation and the specific interpretation of the laws at issue. Some states have enacted so-called religious freedom statutes and thus religious objectors have significant protections. Read on for tips to employers.

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Virginia News Tragedy: Prevention & Readiness for Workplace Violence

Reportedly, more than 1,700,000 workers are injured annually as a result of workplace violence. We were recently reminded that disgruntled employees can be deadly. On August 26th, Vester Lee Flanagan, II murdered two of his former colleagues during a live news segment before taking his own life. This tragedy provides an opportune backdrop for employers to reassess preventative measures in place and disaster readiness in order to minimize the likelihood and impact of violence in the workplace.

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Is Obesity a Disability?

A case currently pending before the Eighth Circuit will address whether ADA protections should extend to obese workers. With more than 2/3 of the US adult population considered overweight, recognition of obesity as a disability under the ADA - defined as physical or mental impairment that substantially limits major life activities - will result in accommodations and protections in unprecedented numbers.

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Employers: Adapt to Obergefell

Employers must adapt to Obergefell v. Hodges. Prior to the Supreme Court’s June 26, 2015 decision, many states did not require employers to recognize and provide benefits for married same-sex couples. Only 36 states and Washington D.C. legalized same-sex marriage. Now, the Supreme Court determined that the 14th Amendment requires states to license same-sex marriages and to recognize lawfully licensed same-sex marriages performed out-of-state. In light of this holding, employers must ensure that their policies, procedures and the benefits comport with federal law.

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Attorney Lawsuit over Overtime Pay

Professionals often require additional assistance handling time-consuming, but routine, tasks. This is particularly apparent in complex litigation that involves voluminous discovery and document review. Not surprisingly, document review can quickly become one of the more labor-intensive and expensive stages of the case. In order to meet this challenge, many firms will hire temporary attorneys to review the discovery for privilege and scope. Before doing so, query whether these firms consider the overtime implications of the FLSA.

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