Category Archives: Employment Laws

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Think it’s okay not to provide a reason for termination? Think again.

Some employers operate under the assumption that “at-will” employment means that an employee does not have to be given any reason for termination of his or her employment. However, that theory may allow an employee to overcome an employer’s motion to dismiss a discrimination lawsuit, since in order to overcome such a motion, a plaintiff … Continue Reading

Recent Enforcement Guidance provides insight into EEOC’s assessment of retaliation claims.

Retaliation claims are asserted in nearly half of the charges received by the Equal Employment Opportunity Commission (EEOC), according to its Chair, Jenny Yang, and now comprise the most frequently alleged basis of discrimination. On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. The guidance, which replaces the EEOC’s … Continue Reading

Watch for increased penalties (for failure to post required notices).

Every “employer, employment agency, labor organization, and joint labor management committee controlling an apprenticeship or other training program” covered by Title VII, the Americans with Disabilities Act (ADA), or the Genetic Information Non-Discrimination Act (GINA) must post notices describing the pertinent provisions of Title VII, ADA, or GINA. Such notices must be posted in “prominent … Continue Reading

Political Discussions in the Workplace: Banter or Battle?

In a year where political rhetoric has included name calling, jeers, and physical threats – and all of these coming directly from the candidates themselves – what can employers do to manage workplace discussions about political issues before those discussions become disruptive? A nationwide survey conducted by CareerBuilder and Harris Poll ahead of the 2012 … Continue Reading

San Francisco on the Verge of Imposing Employer-Funded Paid Parental Leave: FAQs on the Groundbreaking Ordinance

This post is written by Charles L. Thompson, IV, a shareholder in Ogletree’s San Francisco office and originally was published on the firm’s blog. The San Francisco paid parental leave ordinance is of note as the first in the country; it also is noteworthy that the employee need only work in, not live in, San Francisco … Continue Reading

Performance Reviews: Constructive Criticism . . . or Total Destruction?

By Maria Greco Danaher (Shareholder, Ogletree Deakins) and Christopher M. Danaher (Director, Client Partnership & Growth for Bellefield Systems) Is the annual performance review a value-added event for employees . . . or is it an anxiety-generating mechanism that could be eliminated without the loss of any forward momentum to a company? Here are a … Continue Reading

Sixth Circuit decision reminds employers of simple mechanisms for avoiding legal risk.

Long-standing and consistently applied policy, coupled with clear and objective documentation of the employer’s financial status form the basis of a decision by the 6th U.S. Circuit Court of Appeals to uphold the dismissal of an employee’s age discrimination claim. Green v. Twp. Of Addison, 6th Cir., No. 14-1607, unpublished (May 27, 2015). Linda Green, … Continue Reading

Getting with the (Wellness) Program: EEOC Proposes New ADA Regulations for Wellness Programs

This post was written by Ogletree Deakins attorneys, Jeanne E. Floyd (Of Counsel, Richmond Office), and Ruth Anne Collins Michels (Shareholder, Atlanta Office), and was published originally on the firm’s website on April 21, 2015. For some time, employers have faced uncertainty about the status of their wellness programs under the Americans with Disabilities Act (ADA). While the … Continue Reading

Misrepresentation on employment application may override state criminal background check law.

Most employers understand the importance of compliance with the federal Fair Credit Reporting Act (FCRA) as it applies to background checks and applicant records. However, employers also must recognize the interplay of state law restrictions on the use of background checks in the application and employment process. Recently, a federal district court in Pennsylvania granted … Continue Reading

Continued Employment is Insufficient Consideration for Non-Compete Agreement in PA.

This article was written by John H. Riordan, Jr. Of Counsel in Ogletree Deakins’ Pittsburgh Office. In general, contracts “in restraint of trade” have been considered to be illegal. One exception under most state laws is the “Non-Compete Agreement,” wherein an employee agrees – typically upon being hired – not to compete with his/her employer … Continue Reading

What’s open (Mount Rushmore) and what’s closed (the IRS, e-Verify, and the OFCCP). Here’s the latest information.

Well, at least Mount Rushmore is open again, along with the Statue of Liberty and the Grand Canyon.  But for most of the Administrative Agencies related to labor and employment, things haven’t gotten much better since last week, and the deadlock in D.C. continues.  Here’s the latest information available: Department of Labor (DOL) • Only 2,954 out … Continue Reading

Employee was awarded UC benefits after being fired for failing to repair or replace her inoperable automobile

On August 29, 2013, the Commonwealth Court of Pennsylvania – an intermediate appellate court – affirmed an Unemployment Compensation Board of Review (UCBR) decision that because an employee who was earning $9.00 an hour was unable to afford to pay for care repair or to buy another vehicle, the employee showed “good cause” for violating … Continue Reading

WARN Act’s “unforeseeability” defense allows a reduction, but not elimination, of the required notification period.

The 11th U.S. Circuit Court of Appeals has determined that a casino which had instituted two layoffs that ultimately culminated in the closure of its facility violated the federalWorker Adjustment and Retraining Notification (“WARN”) Act by failing to provide notice to its former employees in a timely and appropriate manner. This liability was established in … Continue Reading

OFCCP directive specifies calculations for back pay relief in discrimination cases against federal contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive entitled “Calculating Back Pay as a Part of Make-Whole Relief for Victims of Employment Discrimination” (“Directive”). The Directive addresses the two distinct models for calculating back pay relief – formula relief and individual relief – and indicates when … Continue Reading

Firing replacement workers to allow striking employees to return is not a “mass layoff” under WARN Act.

The Worker Adjustment and Retraining Notification (WARN) Act requires a 60-day notice to employees before a “mass layoff” can take place. A mass layoff is a reduction in force which is not the result of a plant closure, but which results in an employment loss of at least 50 full-time employees at a single site. … Continue Reading

Employer’s actions have unintended consequences in Texas whistle-blower case.

In one of the most dramatic and convoluted scenarios ever seen in a whistle-blower case, a doctor has been disciplined by a medical board; a hospital administrator has been jailed; two nurses have been fired, criminally charged, acquitted, and then awarded $750,000; and a local sheriff has been removed from office and sentenced to jail, … Continue Reading

U.S. Supreme Court rules that the “Cat’s Paw” theory can create liability for discrimination.

The U.S. Supreme Court has held, by unanimous opinion, that an employer may be held liable for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on the “discriminatory animus” of an employee who influenced, but did not make, an ultimate employment decision. In interpreting the so-called "cat’s paw" theory of … Continue Reading

Employees who stop coming to work because business is closing are entitled to 60-day notice under the WARN Act.

The Worker Adjustment and Retraining Notification (WARN) Act states that an employer cannot order a plant closing or mass layoff that will affect 50 or more employees without a 60-day written notice to each affected employee. An “affected employee” is someone who is expected to experience an employment loss as a result of the closure … Continue Reading