Category Archives: Employment Practices Liability

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.

Continue Reading....

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.

Continue Reading....

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.

Continue Reading....

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.

Continue Reading....

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.

Continue Reading....

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.

Continue Reading....

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.

Continue Reading....

Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

Continue Reading....

What Constitutes Harassment? Impact of New Law

Retaliation and harassment are the most commonly filed employment law claims nationwide. After the Fourth Circuit’s recent decision in Boyer-Liberto v. Fountainbleau Corp., No. 13-1473 (4th Cir. May 7, 2015) lawsuits alleging hostile work environment and harassment will only be more difficult for employers to dispose of. The Fourth Circuit held that a single instance of harassment may create an actionable hostile work environment claim, and that an employee can be protected from retaliation when complaining about harassment, even if the purported harassment is ultimately not severe enough to create a hostile work environment.

Continue Reading....

Supreme Court Clarifies EEOC Conciliation Process

A growing concern of late among employers has been the often heavy-handed tactics of the EEOC with respect to its statutory obligations to pursue pre-suit conciliation processes. Though the EEOC is required by Title VII of the Civil Rights Act of 1964 to attempt settlement negotiations between an employer and the allegedly wronged employee prior to suing for a judicial intervention, many employers felt that the EEOC has been overly aggressive with its pre-suit tactics. The end result for these employers has been a rise in avoidable, costly, and occasionally reputation-damaging litigation.

Continue Reading....