HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Of Public Schools and Private Employers: Trump Reverses Direction on Male, Female and Gender Neutral Restrooms

Posted in Discrimination, Gender Identity, LGBTQ Employees, Workplace Policies


Employers are caught, once again, between agency pronouncements and White House actions. While President Trump commented on the campaign trail that transgender people should “use the bathroom they feel is appropriate,” he appears to have rethought this position as commander-in-chief. Continue Reading

Employees Bound by Non-Compete Agreement When They Clicked “Accept” to a Bonus on Intranet

Posted in Noncompetition Agreements

Two employees who clicked “accept” on an online form in order to receive a bonus were bound by additional language that included an agreement to not compete in the future.  Messrs. Lynch and Halpin worked in sales for ADP, and every year to collect their annual bonuses, they had to “accept” a non-compete agreement through a “clickwrap” button on an internal company webpage. They claimed, however, to be unaware that by accepting the bonus they were also consenting to a non-compete agreement. In ADP, LLC v. Lynch and Halpin, No. 16-3617 (3d Cir. Feb. 7, 2017) (slip op.), the United States Court of Appeals for the Third Circuit affirmed the grant of a preliminary injunction by the United States District Court for the District of New Jersey in favor of employer ADP against former employees Lynch and Halpin. Continue Reading

Medical Marijuana Act Clouds the Rights of Employers to Establish and Enforce Marijuana Policies

Posted in Medical Marijuana, Workplace Policies

Pennsylvania’s recently passed Medical Marijuana Act (MMA) has left employers dazed and confused about whether they may continue to enforce zero tolerance drug policies. The MMA, which provides qualifying patients with access to medical marijuana through a safe and effective delivery method, is intended to balance patient need for access with patient safety. However, balancing these interests is not always an easy task, especially because marijuana remains an illegal substance under the Federal Controlled Substances Act. The attempt to balance patient access and safety, and the juxtaposition between state and federal law, can put employers in a sticky situation, particularly when it comes to establishing and enforcing zero tolerance drug policies. Continue Reading

One Bite, Two Apples: Third Circuit Confirms That Requests For Leave Under the FMLA Can Simultaneously Qualify As A Request For A Reasonable Accommodation

Posted in Americans with Disabilities Act, Family Medical Leave Act

The interplay between the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”) is an area of confusion for most employers. This confusion is understandable as both statutes serve distinct purposes but require a covered employer to grant medical leave to employees in certain circumstances. Employees may require a leave of absence for a myriad of reasons and in many scenarios the employer’s obligations differ greatly in each situation. The Third Circuit Court of Appeals recently decided a case that makes navigating the FMLA/ADA waters a bit trickier. In Capps v. Mondelez Global, LLC, No. 15-3839, 2017 U.S. App. LEXIS 1593 (Jan. 30, 2017), the Court held that under certain circumstances a request for FMLA may also qualify as a request for a reasonable accommodation under the ADA. Continue Reading

Wage and Hour Update – Federal and Local Laws on the Chopping Block

Posted in General Labor and Employment News and Updates, Wage & Hour

During the Obama administration, federal agencies enacted wage and hour regulations that tended to favor employees, even while the federal minimum wage remained unchanged. State and local governments also played a role, moving forward with laws and ordinances governing wages and paid leave.    Continue Reading

President Trump Orders a Wall and Other Major Immigration Measures in His First Week in Office

Posted in Immigration

Satin flag with emblemOn January 25, 2017, President Trump issued three Executive Orders related to our immigration system and national security. Broadly speaking, the President’s orders focus on the following:  border security, removal of undocumented immigrants from the U.S., and the visa issuance by U.S. consular posts abroad.  Continue Reading

Department of Labor Refuses to Let the Clock Run Out on the Persuader Rule…How about Overtime?

Posted in Labor Relations, NLRB

On January 12, 2017, the Department of Labor filed a notice of appeal of District Judge Sam R. Cummings’ November order that blocked the Department of Labor’s controversial “persuader rule.” The rule, discussed by HRLegalist when it was announced in March 2016, required employers to disclose their agreements with outside consultants hired to discourage employees from unionizing, was met with staunch opposition from both law firms and businesses. In particular, attorneys decried the perceived infringement on their attorney-client privilege while employers argued that the rule dissuaded them from consulting with counsel. Continue Reading

Now is the Time for Employers to Update Harassment Prevention Procedures and Get in Compliance with New EEOC Guidelines

Posted in Equal Employment Opportunity Commission, Workplace Policies

On January 10, 2017, the United States Equal Employment Opportunity Commission (“EEOC”) announced that it is seeking public input on proposed “Enforcement Guidance” designed to address harassment in the workplace. The proposed Enforcement Guidance is available here for public comment until February 9, 2017. Continue Reading

The Gig Economy: Employee or Independent Contractor?

Posted in Equal Employment Opportunity Commission

The gig economy is a domain where companies hire workers for specific projects or “gigs.” Generally these workers retain control over the manner and the means of performing their work and are classified as independent contractors. Currently, the gig economy is booming, as Time Magazine’s recent survey estimated that it includes over 14 million people. Gig economy companies benefit because they need significantly less capital and avoid payments of employee taxes and benefits (e.g. paid sick days, health insurance, and retirement benefits). Gig economy workers benefit in a gig economy due to flexible work schedules, control over the work, and a lack of oversight. Continue Reading