HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Interviewing Applicants? What Employers Can’t Ask in Interviews

Posted in Hiring

If you are the interviewer, there actually is such a thing as a stupid (and perhaps unlawful) question in an interview. The key to developing appropriate interview questions that are both useful in obtaining relevant information and also legal is to train those involved in the interview process. Participants in the interview process, regardless of whether they are decisionmakers, should fully understand what information should not be solicited during telephone screens or interviews of applicants. Even the most cautious employers, however, may face litigation from a disgruntled applicant who believes that he or she was treated unfairly in the hiring process. Recognizing these potential legal pitfalls and training those involved in the interview process is the best way to avoid asking the wrong question during an interview. Continue Reading

New Jersey Court Upholds Use of Job Application to Shorten Statute of Limitations for Employment Claims

Posted in Hiring, Workplace Policies

According to a recent decision from New Jersey’s intermediate appellate court, employers in New Jersey can now reduce the statute of limitations for employment claims by adding the appropriate language to their job applications. Employment claims in New Jersey are often brought under the New Jersey Law Against Discrimination (“NJLAD”), which allows for a private cause of action for harassment, discrimination and retaliation, and permits recovery for lost wages, emotional distress damages, attorneys’ fees, and punitive damages. The NJLAD has a two-year statute of limitations and does not require employees to file with an administrative agency before proceeding to court. Therefore, in New Jersey, it is not unusual for employees to file their employment claims just before the two-year statutory deadline. By the time discovery begins in the lawsuit, key witnesses may have left the organization and memories may have faded, making it more challenging to coordinate a defense. New Jersey employers may now be able to streamline these challenges at the outset of the employment relationship by shortening the time period for filing a lawsuit via waivers in employment applications. Continue Reading

FMLA Leave Requests: Do Employees Need to Specify the Expected Duration of Leave?

Posted in Family Medical Leave Act, Workplace Policies

Under the Family Medical Leave Act (FMLA), whether an employee is required to specify the expected duration of leave on a FMLA application depends on whether the leave is categorized as foreseeable or unforeseeable leave. If the FMLA application is for foreseeable leave, the FMLA regulations require that the employee specify the expected duration of the leave on the application. To the contrary, FMLA applications for unforeseeable leave do not require employees to tell employers how much leave they need—if they are unsure of the expected duration. Instead, the FMLA regulations instruct employees to comply with the employer’s policies. For example, employers may implement policies that require updated estimates about how long leave will last. But what happens when an employee cannot provide an expected duration for the unforeseeable leave and the employer wants to replace the employee? Continue Reading

FMLA Benefits May Be Extended for Same-Sex Spouses

Posted in Family Medical Leave Act

Under current law, an eligible employee may take leave under the Family Medical Leave Act (FMLA) to care for a same-sex spouse only if they reside in a state that recognizes same-sex marriage. If the employee lives in a state that does not currently recognize same-sex marriage, however, the employee is not eligible for spousal leave under the FMLA. On June 20, 2014, the Department of Labor (DOL) proposed a new rule which would allow an eligible employee in a same-sex marriage to take FMLA leave to care for a same-sex spouse, regardless of where they live. The DOL explained that the proposed rule “will ensure that the FMLA will now be applied to all families equally, giving spouses in same-sex marriages the same ability as all spouses to fully exercise their rights and responsibilities to their family.” Read on to find out what impact this proposed rule would have on FMLA leave usage. Continue Reading

Beware! “Standard Terms” in Your Company’s Separation Agreement Might Trigger a Lawsuit: EEOC Says Common Provisions Are Unenforceable

Posted in Employment Agreements

Recently, the EEOC filed two separate actions in federal court challenging form separation agreements given to employees as part of reductions in force. The agency takes issue with provisions that impact an individual’s rights to participate in the EEOC process, including filing a Charge of Discrimination and participating in an agency investigation. While both cases are still in the early stages of litigation, the EEOC has made clear that it intends to re-energize its 1997 enforcement guidelines, which state that an employer may not interfere with an employee’s rights to participate in an EEOC proceeding. The EEOC’s Regional Attorney leading the case filed in the Northern District of Illinois, John Hendrickson, stated that: “[w]hen an employer attempts to limit that communication [with the EEOC], the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.” Continue Reading

FLSA Refresher: DOL’s Wage and Hour Rules for Tipped Employees

Posted in Wage & Hour

Temperatures aren’t the only thing on the rise this summer. Wage and hour lawsuits brought by service industry employees are heating up—particularly in the food service and hospitality sectors—leading to significant and costly legal exposure. In response, the U.S. Department of Labor (DOL) implemented strict rules regarding tipped employees as part of its aggressive stance against wage and hour violations. Unfortunately, given the technical nature and nuances of these rules, employer compliance can be anything but simple. To keep the heat down in your kitchen this summer, read on for a brief summary of the DOL’s proper tip pooling and service charge practices. Continue Reading

Hiring an Unpaid Intern for the Summer? Five Legal Guidelines to Avoid a FLSA Violation

Posted in Wage & Hour, Workplace Policies

With summer vacation around the corner, many companies are looking to hire unpaid interns. If your company is considering an unpaid internship, be sure to carefully structure the internship to avoid running afoul of the Fair Labor Standards Act (“FLSA”). A few general principles may be gleaned from recent court decisions in which courts have addressed whether an unpaid internship violates the FLSA. Generally, an unpaid internship is considered compliant with the FLSA if it is structured such that it offers more of an educational benefit to the intern than it does a utilitarian benefit to the company. Further, as a practical matter, unpaid internships that offer school credit are generally considered compliant with the FLSA. To reduce potential liability, employers should consider the following five guidelines for unpaid internships: Continue Reading

Managing Employee Medical Leave: How Much Leave Is Reasonable?

Posted in Americans with Disabilities Act, Employee Leave Management, Family Medical Leave Act, Workplace Policies

To date, there are few bright line rules to guide employers in determining how much leave is reasonable under the Americans with Disabilities Act (ADA). Further, employers sometimes mistakenly assume that if an employee has exhausted Family Medical Leave Act (FMLA) leave, then the employee is not entitled to additional leave under the ADA. However, even if the employee’s leave is no longer covered by the FMLA (or was not covered in the first place), the employee may still have rights for additional leave. The conundrum for employers is to properly manage employee leave, while balancing attendance and productivity expectations. While it is difficult to derive simple rules regarding leave as an accommodation, one theme resounds—an individualized assessment in each case is critical. Read on for recommendations and general principles for employers to best manage an employee’s request for leave as a reasonable accommodation. Continue Reading

Could Einstein Get a Green Card? Proposed DHS Changes Signal New Opportunities for American Colleges and Universities

Posted in Immigration

The U.S. Department of Homeland Security (DHS) is proposing to expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to include a “comparable evidence provision.” The “comparable evidence provision” is significant, especially in more current or less established fields of endeavor, such as internet design or extreme sports, where more conventional kinds of evidence may not be available. For example, a twenty-something Swedish web designer who is well-known among the tech community could have considerable difficulty meeting the current out-of-date evidentiary requirements, such as finding a major trade journal in his field. The “comparable evidence provision” builds flexibility into the regulations so that such stars can benefit and contribute to the U.S. economy as immigrants. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. Continue Reading

April Showers Bring May Flowers and Other Workplace Irritants: Must an Employer Provide a Fragrance-Free Workplace Under the ADA?

Posted in Americans with Disabilities Act, Workplace Policies

An estimated 45 million Americans are affected by some form of chemical sensitivity that may be triggered by something as simple as flowers, perfume or hand soap. Because a chemical sensitivity may be considered a disability under the Americans with Disabilities Act (ADA), an employer often has a duty to provide a reasonable accommodation when the employee’s sensitivity is aggravated by exposure to a substance in the workplace. However, there are limitations to an employer’s obligations in this regard because the law recognizes that there is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in. To ensure compliance with the ADA, employers should consider the following guidelines to make sense of their obligations regarding scents in the workplace. Continue Reading