The Practical Employment Law Podcast
Mark Chumley
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A podcast covering all aspects of labor and employment law in the United States. Attorney Mark Chumley provides practical insights into the challenges facing businesses today.
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2 days ago
Pay Transparency Laws and Remote Workers
A recent trend in labor and employment law has been the passage of pay transparency laws. These are laws that require employers to either disclose salary ranges for posted jobs to applicants who request the information or in some cases, to all applicants in the actual job posting. At present, there are eight states and a handful of municipalities that have passed these laws but a lot more have pending legislation so I would expect to see more laws passed in the next couple of years.
The states are:
* California
* Colorado
* Connecticut
* Maryland
* Nevada
* New York
* Rhode Island
* Washington
Massachusetts, Pennsylvania and South Carolina have pending legislation. Several municipalities also have laws on the books, including Cincinnati and Toledo, Ohio, Jersey City, New Jersey, and a few in New York, including New York City.
These laws present a problem for employers with operations in multiple states because they are not necessarily the same. Some of the laws require disclosures in the job postings while others only require disclosures at certain points in the hiring process or if the applicant requests the information. Another significant issue is what to do about remote workers. The question is - if you post for a remote job, do you need to comply with the pay transparency laws in light of the fact that someone from a jurisdiction with such a law may apply. The answer is that many of these laws are considered to apply to remote work, at least according to the enforcement agencies involved.
Employers should take some time to review their compliance strategies for pay transparency laws, particularly if they are posting for remote positions.
Listen in to find out how your business can avoid problems with pay transparency laws.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Mar 9, 2023
Labor & Employment Law Update - Week of 3/6/23
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*Proposed FTC Rule Banning Noncompetes -* The comment period has been extended until April 19, 2023. What does that men for employers?
*NLRB Ruling in McLaren Macomb *– The NLRB recently ruled that common confidentiality and non-disparagement provisions in severance agreements violate Section 7 of the National Labor Relations Act. What do employers need to do in response?
You can read the NLRB's decision here: https://apps.nlrb.gov/link/document.aspx/09031d45839af64d
*Hoang v. Microsemi Corp.* – Does your RIF selection process leave you open to discrimination claims?
*Bramble v. Moody Corp.* – An employee was terminated for falling for a phishing scam - was race a factor?
*Linde v. Envision Healthcare Corp. *– What does the employee have to prove in an unpaid overtime claim under the FLSA?
Listen in to find out what happened with these issues and how your business can avoid problems.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Feb 10, 2023
E.W.A. - Straight Outta Payroll
EWA stands for earned wage access. It is a way for employees to receive their earned wages before their regular pay day. Basically, a third party provider is given information about time worked by the employee and pays them the amount earned right away rather than the employee having to wait for payday. While EWA programs are gaining in popularity, they raise a host of compliance and administrative issues for employers who use them. Potential issues arise from laws governing:
* Assignment of Wages;
* Free and Clear Payment of Wages;
* Direct Deposit;
* Unauthorized Deductions from Wages;
* Final Pay;
* Employee Privacy.
Employers using or considering EWA programs need to carefully consider all applicable laws and determine if their program is in compliance.
Listen in to find out how your business can avoid problems with EWA programs.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Jan 27, 2023
Labor & Employment Law Update - Week of 1/23/23
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*FMLA Retaliation*: - What constitutes “protected activity” under the FMLA?
*Perkins v. City of New York* – In this failure to accommodate case, the Court concluded that an ineffective accommodation does not satisfy the requirements of the law.
*Davis v. City of Montevallo* – Your employee handbook has a solid at-will disclaimer so you can’t get in trouble for a termination – right?
*Pregnancy Discrimination* – The Pregnant Workers Fairness Act goes into effect on June 27, 2023 – are you ready?
*Kinzer v. Whole Foods, Inc. *– Is it possible for employers to enforce dress code policies?
Listen in to find out what happened with these issues and how your business can avoid problems.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Jan 6, 2023
The Obligatory New Year's Episode
The New Year is here and this episode will consider some trends from 2022 and what to expect in 2023 and beyond. Issues covered include:
*1. The COVID Gift Keeps Giving;
2. Work From Home/Hybrid Work Arrangements;
3. Arbitration Continues to Lose Ground;
4. The Gig Economy Under Attack;
5. Non-Compete Agreements Under Attack;
6. State Laws Gone Crazy;
7. More Reductions in Force Coming.*
Listen in to find out how your business may be impacted by these issues in 2023.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Dec 15, 2022
The Obligatory Holiday Party Episode
It’s the holidays and employment lawyers everywhere issue their annual advice about holiday parties. Here are 9 thoughts for employers considering a holiday party for their employees:
1. *Alcohol* is a consistent source of problems at holiday parties. Employers should consider foregoing alcohol or taking steps to control consumption.
2. *Transportation* home for employees is something employers who decide to serve alcohol must consider.
3. *Communication* prior to the party is a good idea – let everyone know that the rules and policies apply at the party.
4. *Managers are on duty* at the party – just because it is a party, managers cannot ignore their responsibilities, particularly if they see something inappropriate happening.
5. *Wage and hour issues* – if non-exempt employees are required to attend the party, they must be paid.
6. *The plus one* – if employees are allowed to bring a guest, the approach needs to be uniform and avoid possible claims of discrimination.
7. *Religion* – in general, keep it secular.
8. *Secret Santa* – a literal minefield.
9. *Skip it* – it is the “bah humbug” approach but from an employment law standpoint, it has a lot to recommend it.
Listen in to find out how your business can avoid problems with holiday parties.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Nov 30, 2022
Thanksgiving For Plaintiffs' Attorneys
In honor of Thanksgiving last week, today’s episode will focus on eight things employers do or don’t do that give plaintiffs’ attorneys (attorneys who represent employees against employers) reasons to be thankful.
Number 1: Having no documentation;
Number 2: Having inconsistent documentation;
Number 3: Not giving a reason for termination;
Number 4: Giving a false reason for termination;
Number 5: Inconsistent application of the rules;
Number 6: Management disagreement;
Number 7: Not getting the employee’s side of the story;
Number 8: Bad optics.
Listen in to find out how your business can avoid these problems.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Nov 7, 2022
Interview with Author and Lawyer Steven Mitchell Sack
A new feature of The Practical Employment Law Podcast will be interviews of guests with insights into employment law, including attorneys, business owners and managers and just about anyone with something interesting to say.
In today's episode, I interview author and plaintiffs' attorney Steven Mitchell Sack about his new book: FIRED! Protect Your Rights & FIGHT BACK If You're Terminated, Laid Off, Downsized, Restructured, Forced to Resign or Quit
Steve has a lot of experience and great insights into the world of labor and employment law.
Steve's contact information is available on his website: www.theemployeeslawyer.com
You can buy a copy of his book here: legalstratpub.com or on Amazon at:
https://www.amazon.com/FIRED-Protect-Terminated-Downsized-Restructured/dp/B09Y5FKBBB/ref=sr_1_1?crid=2BHQ9R60ER4EF&keywords=steven+mitchell+sack&qid=1666897332&sprefix=Steven+Sac%2Caps%2C1095&sr=8-1
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Oct 6, 2022
Are You Caught In A TRAP?
Training repayment agreement provisions (TRAPs) are a hot topic lately. These agreements, which may be stand alone or included in a broader employment agreement, require employees who have completed an employer provided training program to reimburse the employer for some or all of the cost of the training if they leave within a certain timeframe. The agreements are unpopular with employees and have become somewhat controversial but courts have often enforced them against departing employees. Are they right for your business - here are a few considerations before you set a TRAP:
1. Does your business have a need for TRAPs?
2. Beware of unintended consequences such as difficulty recruiting and retaining employees;
3. You will probably have to go to court to enforce a TRAP and you may be counter sued;
4. Make sure the TRAP reflects reality;
5. Get professional help with TRAPs.
Listen in to find out how your business can avoid problems with TRAPs.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Sep 20, 2022
The Controversial Episode
Today's episode will consider a couple of controversial topics. First, the CDC recently updated its COVID-19 guidance for the workplace in some surprising ways. Because many employers defaulted to the CDC for workplace guidance and because emotions continue to run high regarding these issues, employers should be aware of the changes. The CDC's new guidance can be viewed here:
https://www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm
Next, there has been increased media reporting and interest in so-called reverse discrimination cases, that is cases where members of majority groups claim to have been discriminated against. While such cases used to be a true rarity, they are becoming more common and have even resulted in some very large awards for plaintiffs.
Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Aug 26, 2022
Five Thoughts About Noncompete Strategy
Noncompete agreements are a hot topic these days. Unfortunately, many employers who have noncompete agreements in place have not taken the time to consider their strategy for enforcement. In this episode, five thoughts about noncompete strategy will be considered, including:
1. Noncompete Agreements are usually enforceable, up to a point;
2. State laws vary - a lot;
3. In some cases, the process is the punishment;
4. Consider the cost benefit analysis;
5. Develop a big picture strategy.
Listen in to find out how your business can avoid problems with noncompete agreements.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Aug 8, 2022
Labor & Employment Law Update - Week of 8/8/22
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*Sex Discrimination: *- What is the "same actor" inference and how does it help employers in discrimination litigation?
*Delagrange v. Weaver Popcorn Manufacturing* - In this recent case involving allegations of same sex harassment and retaliation, the employer's justification for termination was not well documented.
*Hattabaugh v. TMS International *- This wage and hour case seeking unpaid overtime serves as a reminder for employers about the importance of keeping accurate time records.
Listen in to find out what happened with these issues and how your business can avoid problems.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft:…
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Jul 19, 2022
Mediation in Employment Law Cases
With courts still backed up from COVID shutdowns, mediation is a popular option to resolve litigation. Mediation is a process where parties to a dispute hire a neutral third party to help them reach a resolution of the dispute. It can be a particularly useful tool in employment litigation but how much do you really know about mediation and how it works?
* How do you find a mediator?
* Who pays for the mediation?
* How does the process work?
Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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May 30, 2022
Labor & Employment Law Update - Week of 5/30/22
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*Religious Accommodations: *- Does an employer have to accommodate an employee who cannot work on Sundays and what constitutes an undue hardship. The Third Circuit considered these issues in Groff v. DeJoy.
*Berling v. Gravity Diagnostics* - In this recent Kentucky case, a jury awarded an employee over $450,000 when his employer ignored his request that it forego giving him a birthday party due to the employee’s panic disorder and later terminated his employment.
*COVID-19* - Everyone wants to move on but there are still lawsuits pending. Two recent cases involve employee refusal to undergo weekly testing and absenteeism in part due to FFCRA leave.
Listen in to find out what happened with these issues and how your business can avoid problems.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon…
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May 5, 2022
The Future of Arbitration
On March 3, 2022, the President signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. A product of the Me Too Movement, the new law allows individuals bringing sexual assault and sexual harassment claims who entered into predispute arbitration agreements or class- or collective-action waivers to reject those agreements and waivers and bring those claims in court and via a class or collective action. The law applies to any claims arising after the date of enactment.
In addition, California law as it currently stands bans all mandatory predispute arbitration agreements in employment and Congress recently passed the Forced Arbitration Injustice Repeal Act of 2022 (FAIR Act), which would also ban mandatory predispute arbitration agreements if it becomes law.
Times are uncertain for employers who rely on arbitration.
Listen to the new episode of The Practical Employment Law Podcast for insights on these issues and more.
Comments or questions:…
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Apr 21, 2022
The Gig Economy
The so-called gig economy is subject to a great deal of uncertainty in the labor and employment law context. The key issue is whether workers are properly classified as employees and subject to various labor and employment laws or whether they are independent contractors with a lot of flexibility but far less legal protection. This is not a new issue but the prevalence and popularity of gig economy businesses like Uber, Lyft, DoorDash and others have brought the issue into the spotlight.
The traditional test for independent contractor status is multifactored and focuses on the issue of the hiring party's control over the worker. In 2019, California passed a law adopting the "ABC Test," a simple test that classifies almost every worker as an employee. The legal battle over that law in California remains unresolved but the same ABC Test is in the federal PRO Act, which has passed the House but not the Senate. If it passes, the gig economy may not survive and independent contractors may…
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Mar 11, 2022
Labor & Employment Law Update - Week of 3/7/22
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*Religious Accommodation*: New cases addressing employer obligations in the area of religious accommodations under Title VII are discussed as well as the EEOC’s new guidance on COVID-19 vaccination accommodations, which was issued on March 1, 2022.
You can find the EEOC’s complete guidance here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
The new vaccine accommodation guidance begins at Letter “L” – scroll down.
*Social Media*: The media recently reported on the termination of a longtime executive from the cosmetics company Estee Lauder after an unfortunate social media post that included a racial slur. What can employers take from this situation and how can they avoid similar issues?
*Recall Laws*: The California Labor Commission recently fined a California resort over $3M for faili…
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Feb 8, 2022
Bonus Episode #2 - Labor and Employment Law Goes To The Movies: 9 to 5
Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me? Well, take heart because there are a surprising number of movies that rely heavily on labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast.
I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&E law.
*In this Bonus Episode:*
9 to 5 (1980)
Content: 4 out of 5 stars;
Accuracy: 3 out of 5 stars.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.…
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Feb 8, 2022
Labor & Employment Law Update - Week of 2/7/22
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*The NFL Discrimination Lawsuit*: The NFL and three teams are being sued for discrimination in hiring and the allegations include an alleged sham interview that accidentally came to light due to an errant text message.
*The Resignation of CNN President Jeff Zucker*: In another major story, the president of CNN has resigned due to the disclosure of a consensual workplace relationship with another employee.
What can employers learn from these stories?
Listen to the new episode of The Practical Employment Law Podcast for insights on these stories and more.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Dec 22, 2021
Twelve Thoughts About Vaccine Mandates
In honor of the famous holiday song, The Twelve Days of Christmas, this episode will cover twelve thoughts on the vaccine mandates, including:
*1. Current status of the mandates;
2. The Supreme Court’s consideration of the OSHA rule;
3. Timing issues created by the OSHA rule;
4. Steps for employers before the deadlines;
5. The costs associated with compliance;
6. Handling accommodation requests;
7. Issues with turnover;
8. Issues with noncompliant employees;
9. State and local laws;
10. Impact of mandates on smaller businesses;
11. Union issues;
12. Communication with employees.*
Listen to the new episode of The Practical Employment Law Podcast to find out more about these issues.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Dec 13, 2021
Employment Law Advice from Ebenezer Scrooge
The holidays are here again and they represent a minefield for employers. It seems that every year the period of time from mid-November through the end of the year is guaranteed to generate employment litigation. With that in mind, let’s look to Charles Dickens’ beloved character Ebenezer Scrooge to give us some holiday employment law advice on 5 topics:
1. Scheduling, Absenteeism and Tardiness
2. Holiday Parties
3. Holiday Displays
4. The Holidays Bonus
5. Termination and Adverse Action
Listen to the new episode of The Practical Employment Law Podcast to find out what advice Scrooge has for you on these issues.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Nov 23, 2021
Federal Vaccine Mandate(s) Update
While the OSHA Emergency Temporary Standard mandating vaccines for employers with over 100 employees has dominated the news, there are two other federal mandates that impact many employers: the federal contractor rule issued via executive orders and the Centers for Medicare & Medicaid Services (CMS) Rule applicable to medicare and medicaid recipients. In this episode, the current status of these rules will be discussed along with some thoughts on what employers should be doing right now to comply or prepare to comply with the rules.
*OSHA ETS*: This rule has been stayed by the 5th Circuit and OSHA has agreed to take no further action toward enforcement or implementation until the courts rule on the ETS. The challenges are now consolidated before the 6th Circuit, which has yet to issue a briefing schedule. It is likely that even after the 6th Circuit rules, there will be additional litigation that will most likely be resolved by the U. S. Supreme Court. For now, it seems unlikely that…
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Nov 4, 2021
OSHA Issues Emergency Temporary Standard (ETS) Requiring Mandatory COVID Vaccines or Weekly Testing
OSHA issued its Emergency Temporary Standard (ETS) effective November 5, 2021. The ETS requires employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks. The ETS requires that covered employers begin complying by December 5, 2021 (other than testing) and sets a deadline to begin testing employees who are not fully vaccinated by January 4, 2022. The rule and related materials, including FAQs and policy templates, can be found here: https://www.osha.gov/coronavirus/ets2
Employers should bear in mind that despite having a short time frame for compliance, the ETS will be subject to immediate legal challenges. This combination of urgency and uncertainty means that covered employers should make planning their approach to the ETS a high priority.
In this episode, the following questions will be considered:
* *What employers are covered?*
* *What if employee numbers fluctuate above and below 100 employees?*
* *How should compan…
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Oct 15, 2021
Labor & Employment Law Update - Week of 10/11//21
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*OSHA COVID-19 Vaccine Rule* - This week, OSHA forwarded their draft Emergency Temporary Standard to the White House Regulatory Office, meaning that the promised rule mandating vaccines for employers with more than 100 employees may be coming soon. The immediate response to the rule when it is issued may depend on whether your business is in a state that follows federal OSHA guidelines or in a state with its own OSHA approved plan. Here is the state by state breakdown:
Federal OSHA states:
Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Vir…
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Sep 16, 2021
Labor & Employment Law Update - Week of 9/13/21
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*New OSHA Vaccine Mandate Rule *– On September 9, the President announced that he is directing OSHA to issue an emergency rule requiring employers with more than 100 employees to require employees to be vaccinated or tested for COVID weekly. At this point, no rule has been issued and there are more questions than answers but several observations are worth considering.
*Arbitration in California* – In U.S. Chamber of Commerce v. Bonta, the Ninth Circuit overturned a lower court’s decision that a state law (A.B. 15), which prohibits employers from requiring employees to waive certain rights as a condition of employment, was in conflict with the Federal Arbitration Act. This is significant because it means that employers in California cannot require employees to consent to arbitration as a condition of employment.
*Work From Home Arrangements* – The EEOC has…
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Sep 2, 2021
Five Legal Things That Lead to Employment Litigation
Avoiding illegal conduct is always a good strategy for avoiding employment litigation. However, there are many legal things that employers and managers do that can also lead to litigation. Here are five things that often lead to employment litigation:
1. *Workplace Romances* – while consensual relationships in the workplace are not illegal, they often lead to litigation when they end.
2. *Nepotism* – giving preferential treatment to friends and family in the workplace is legal but it often leads to unfairness and drives aggrieved employees to court.
3. *Not Enforcing Policies *– with a few exceptions (such as EEO policies), employers are not legally obligated to enact policies or follow their policies. Nevertheless, employers should avoid enacting policies they will not or cannot enforce.
4. *Conflict Avoidance *– no one likes conflict but failing to address issues, even issues that don’t seem to violate workplace rules, often leads to litigation.
5. * Being a Jerk *–…
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Aug 20, 2021
Labor & Employment Law Update - Week of 8/16/21
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*Transgender Employee Issues *– Two new cases from Illinois involve claims of discrimination by transgender employees. In Hobby Lobby v. Sommerville, an employee was denied access to the women’s restroom and in Todd v. JB for Governor, a campaign worked claims that she was included in a reduction in force because of transphobic bias.
*Religious Discrimination* – In Rivas v. Caesar Enterprise Services, a casino employee was terminated for refusing to work on her religion’s Sabbath day despite requesting an accommodation. In Starkey v. Roman Catholic Archdiocese of Indianapolis, a guidance counselor at a Catholic high school brought a discrimination claim when her contract was not renewed because she was in a same sex marriage.
*Dress Code and Politics* – The NLRB recently filed a complaint against Home Depot for discriminating against an employee who wor…
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Jul 30, 2021
Labor & Employment Law Update - Week of 7/26/21
In this episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*COVID-19 and Masks: *- The CDC has issued new guidance for vaccinated individuals - what does this mean for employers?
The *CDC COVID-19 Tracker *is here: https://covid.cdc.gov/covid-data-tracker/#county-view
*Mandatory Vaccination Policies* - The U.S. Department of Justice has issued an opinion on the meaning of the Emergency Use Authorization status of COVID-19 vaccines, which has formed the basis for some challenges to employers’ mandatory vaccination policies.
*Race Discrimination* - In *Miller v. Brightkey, Inc.*, an employee raised a concern about another employees online activity and when he did not receive an immediate response, followed up with a company wide email about the issues.
In *Threat v. City of Cleveland*, a supervisor attempted to “promote diversity” by moving employees between shifts based on race.
*Disability discrimination* - In *Collins v. A…
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Jul 15, 2021
Bonus Episode #1 - Labor and Employment Law Goes To The Movies: Robocop
Have you ever thought to yourself: if I was a homicide detective or a vampire or a superhero, there would be a lot of movies in my wheelhouse but I work in labor and employment law and there is just nothing out there for me? Well, take heart because there are a surprising number of movies that rely heavily on labor and employment law and I'm going to tell you about them in bonus episodes of the Practical Employment Law Podcast.
I rate movies in two categories: 1) Labor and Employment Law content, i.e. how important is L&E law to the plot of the movie; and 2) Labor and Employment Law accuracy, i.e. how accurate is the portrayal of L&E law.
*In this Bonus Episode: *
Robocop (1987)
Content: 4 out of 5 stars;
Accuracy: 4 out of 5 stars.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixte…
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Jul 15, 2021
Labor & Employment Law Update - Week of 7/12/21
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
*Marijuana* – Virginia has joined a growing number of states legalizing marijuana despite the fact that it remains illegal under federal law. The new Virginia law includes protections for employees who have a prescription for cannabis oil but not for other use. Such employees cannot be subjected to adverse action for a positive drug test. Many other states, including Ohio, expressly allow employers to take adverse action even where the employees use is legal. Employers need to review applicable laws and carefully consider their approach to this issue.
*Errant email* – Yet another recent case in the media underscores the dangers of the “reply all” button and the ill-advised practice of commenting on others’ appearances in the workplace.
*Minors and Arbitration* – In a recent Kentucky case, the court held that the employer could not enforce its arbitrat…
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Jun 23, 2021
Termination Done Right - Part 3
The third and final episode in the podcast mini-series - Termination Done Right - covers additional steps for employers to consider taking to minimize the damage in the event there is litigation over a termination decision. Steps include:
1. *Arbitration*: In arbitration, parties agree to allow a neutral arbitrator to serve as both judge and jury and decide their dispute instead of going to court. Courts generally enforce arbitration agreements between employers and employees but there are pros and cons for employers to consider, including:
*Pros*:
* No Jury – Taking the case away from a jury and allowing a trained arbitrator to decide the case is viewed as a positive by many employers;
* Faster and Cheaper – In most cases, arbitration proceedings are resolved quicker than cases in court. It is possible for arbitration proceedings to be cheaper than traditional litigation but it is not guaranteed
* Lower Settlement Values – One issue that drives settlement value is the t…
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Jun 9, 2021
There's An [Employment] App For That
Many employers are using or considering using smartphone apps for their employees. In such cases, employees download an app that can be used for a variety of purposes, including employee engagement, communication, work assignments, route and delivery information and more. While apps can be helpful, they also raise many employment law issues, including the following:
1. *Reimbursement*: Two states – California and Illinois - have statutes specifically requiring reimbursement for required employee cell phone use. Several other states have statutes that arguably require cell phone reimbursement, including: Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, Pennsylvania, and District of Columbia.
2. *Wage and Hour Issues:* The FLSA requires that employees be paid for all hours that the employer “suffers or permits” to be worked. When employees have an app on their phone, it opens the door to a lot of unauthorized work time related to using the app, checking messages,…
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May 18, 2021
Update: CDC Issues New Guidance on Masks
In a surprise move on Friday (5/14), the CDC issued new guidance indicating that individuals who have been fully vaccinated no longer need to wear masks or social distance in most settings. Several states and municipalities, including Ohio, have quickly adopted the CDC’s new approach and m ore are likely to follow. This has left employers with a lot of questions, including:
Can I continue to require masks?
If I no longer require masks for vaccinated employees, can I ask who has been vaccinated?
Can I or should I verify the vaccination status of employees?
What issues might come up when I change the mask policy?
Do I need to involve the union in these issues?
Listen to the new episode of The Practical Employment Law Podcast for insights on these questions and more.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommerc…
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May 6, 2021
The Settlement Episode
The statistics tell us that most employment law cases end in settlement. Unfortunately, there are a lot of misconceptions about settlement and the process to reach a settlement. In this episode, the basics of settlement will be covered. Specific points include:
*When to Settle*: When can parties to employment litigation settle and more importantly, when should they.
*How to Settle:* What are the various methods that the parties might use to reach a settlement.
*Settlement v. Severance*: While they are often confused, they arise in different circumstances.
*The Older Workers Benefit Protection Act (OWBPA)*: This statute imposes specific, mandatory requirements on any waiver of age discrimination claims under federal law. Despite this, employers often fail to comply.
*When Not to Settle*: When you don’t want to - no joke, that’s a legitimate reason.
*Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com*
*Music :*
*Jamming with Leon by tex…
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Apr 27, 2021
Labor & Employment Law Update - Week of 4/26/21
In this new podcast episode, recent cases and news from the world of Labor & Employment Law will be discussed, including:
* *Age discrimination* - in Seiple v. Cracker Barrel Old Country Store, an employee brought an age discrimination claim and the court focused on inconsistencies between the employer’s position and the record evidence.
* *Retaliation* - in Scalia v. F.W. Webb Co., an employer was accused of retaliation for sending emails to employees asking about their participation in a Department of Labor investigation.
* *New DOL Guidance on Pandemic Related Issues* - On April 26, 2021, the DOL launched its Essential Workers, Essential Protections Initiative to educate workers and employers about wage and hour laws. Among the resources are FAQs about pandemic related scenarios. You can find them here : https://www.dol.gov/agencies/whd/pandemic
* *Age discrimination* - in Huber v. Fox Valley Park District, the court considered an age discrimination claim where the employ…
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Apr 13, 2021
Termination Done Right - Part 2
The second episode in the podcast mini-series - *Termination Done Right *- covers proactive steps for employers to take in connection with terminations. These steps will help employers in the event there is litigation over a termination decision. Steps include:
*Reviewing Policies Related to Termination - *Employers should ensure that their policies provide them with sufficient discretion to terminate employees at will without requiring multi-step discipline. Also, policies should be periodically reviewed for consistency.
*Conducting Effective Investigations Before Termination *- Even the most straight forward scenario should have some form of investigation to support the termination decision. Key elements of an effective investigation include:
* Thorough Investigation - make sure you gather all of the facts relevant to the termination decision;
* The Right Investigator- the investigator will be a key witness if there is litigation so it should be someone who can be an objective…
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Mar 25, 2021
Labor & Employment Law Update - COVID-19 Issues
This episode will focus on COVID-19 issues. There have been several new developments in 2021 that impact employers’ approaches to COVID-19. In this episode:
*FFCRA Leave* - The FFCRA has again been extended on a voluntary basis so that employers can offer leave through September 30, 2021. Employers who elect to continue offering leave need to be aware of some changes to FFCRA leave.
*COVID-19 Vaccinations* - Last year, the EEOC issued its guidance for employers on COVID-19 vaccination policies that allows employers to require vaccinations with certain exceptions. Several states are not considering legislation that would make mandatory vaccination policies unlawful and at least one lawsuit has been filed over a mandatory vaccination policy.
*
Federal Unemployment Benefits* - Most stats have taken the position that employees who refuse to work based on a generalized fear of contracting COVID-19 are not eligible for unemployment benefits. In recent guidance, the U.S. Department of Lab…
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Mar 5, 2021
Labor & Employment Law Update - Week of 3/1/21
In this new podcast feature, recent cases and news from the world of Labor & Employment Law will be discussed. In this episode:
* *Employee on call time* - in Wesley v. Experian Information Solutions, IT employees brought claims for unpaid overtime for time they were required to be on-call to answer client questions.
* *Rescinded job offer* - in Goldfarb v. Solimine, the court considered a claim by an individual who quit a high paying job to accept another, only to have the offer withdrawn after he quit.
* *Reasonable accommodations *- in Daniel v. Walmart the court considered what steps an employee has to take to request an accommodation.
* *Disability discrimination* - in Baltz v. Ledstri Foods, the court considered the claim of an employee with good reviews who was terminated after a request for an accommodation; email exchanges between managers provided significant evidence in the case.
* *The CROWN Act *- Connecticut has recently passed a CROWN Act (“Creating a Respec…
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Feb 14, 2021
Termination Done Right - Part 1
A significant generator of employment litigation is poorly handled terminations. Whether your approach to litigation is to fight on principle or settle cases, a well executed termination will minimize settlement values and/or make a case more defensible. Of course, it is impossible to eliminate the threat of litigation no matter how well you do things but over the long haul, doing terminations the right way is a sound strategy to limit exposure.
This podcast mini-series - *Termination Done Right* - will cover the basic strategies businesses can employ to limit their exposure in employment litigation. Part 1 of the series covers the common mistakes employers make related to termination of employment and how to avoid them.
*Mistake #1 - Bad Hiring*: In most cases, a bad hire is a bad employee and a bad employee will ultimately need to be terminated. This cycle can be avoided by making good hires. Often, it is as simple as following the hiring procedures you have in place. Unfortunately…
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Jan 14, 2021
Welcome 2021 - 5 Things for Employers to Consider
As we start a new year, here are 5 things employers may want to consider to avoid trouble:
1. COVID-19 Plans - You probably have a plan in place but this is a good time to take stock of how it is working. Also, employers need to consider what to do about vaccine policies as the vaccines become more widely available. Finally, the FFCRA leave has expired as of 12/31/20 but employers may continue to offer leave through March 2021 - consider whether this makes sense for your business.
2. Independent Contractors - How is your business using independent contractors? Are thy properly classified as independent contractors or are they employees? Traditionally, tests focus on the level of control businesses have over workers. On January 7, 2021, the U.S. Department of Labor issued a new final rule on this topic - https://tinyurl.com/y4p6x6qy.
The new rule provides some clarification for employers but its future is not clear as it does not become effective until March after the new administrat…
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Dec 17, 2020
EEOC Issues New Guidance on COVID-19 Vaccinations
The big news in the employment law world this week is the the EEOC has issued its long awaited guidance on COVID-19 vaccinations and the ADA, including guidance on mandatory vaccination policies. You can find it here: https://tinyurl.com/yda87e9r
Here are the key points:
* Employers can impose mandatory vaccination policies and require their employees to get the COVID-19 vaccination. Employee objections based on science or politics are not sufficient to avoid a mandatory vaccination policy, at least as far as the EEOC is concerned.
* Employers must make reasonable accommodations for employees who are unable to get the vaccination due to a disability or a sincerely held religious belief or practice. If an employer makes an individualized determination that such an employee poses a direct threat to health and safety in the workplace that cannot be mitigated or resolved with a reasonable accommodation, the employer may exclude the employee from coming into the workplace.
* The fac…
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Dec 8, 2020
Non-Compete Agreements: Five Mistakes by Three Parties
Non-compete agreements are always a hot topic when employees move around a lot and due to COVID-19, a lot of employers have had reductions in force this year. As a result, we’ve seen an uptick in questions about non-competes. In the typical case, an employee leaves one employer for a new employer and the former employer believes that the employee is violating his or her non-compete agreement. Thus, in any non-compete case, there are three possible parties: 1) the former employer; 2) the employee; and 3) the new employer.
Each of these parties may make mistakes that interfere with their interests in litigation over the non-compete. In this episode of The Practical Employment Law Podcast, I discuss five mistakes that each of the three potential parties commonly makes and how to avoid them. Here are the mistakes:
Former Employer Mistakes:
* One size fits all agreements;
* Administrative failures;
* Inconsistent enforcement;
* Failing to define trade secrets;
* Failing to pr…
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Nov 15, 2020
Employment At-Will - Myth or Reality?
Employment at-will is the default rule in almost every state. Where did it come from, what does it mean and what does it do for employers today? Also, how much do you know about the Civil Rights Act of 1964?
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Nov 5, 2020
Reductions in Force - Key Factors to Consider
If you are planning a reduction in force (RIF) in the current business and legal environment, there are several factors to be considered. Some of the key ones are discussed in this episode.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Nov 5, 2020
Trailer
The Practical Employment Law Podcast is a new podcast from Mark Chumley aimed at managers, HR professionals, business owners and attorneys who want practical insights on how to manage the employment law challenges facing businesses today.
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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Nov 5, 2020
COVID-19 Immunity Laws
You've probably heard about COVID-19 immunity laws being passed but how much protection do they really provide for employers? Also, did you ever wonder where the phrase "You're fired" came from?
Comments or questions: Contact Mark Chumley at mchumley@kmklaw.com or visit www.kmklaw.com
Music :
Jamming with Leon by texasradiofish (c) copyright 2020 Licensed under a Creative Commons Attribution Noncommercial (3.0) license. http://dig.ccmixter.org/files/texasradiofish/61983 Ft: Scomber
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