HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Labor Law Update: Will Employers be Thankful for the NLRB’s new General Counsel?

Posted in General Labor and Employment News and Updates, Labor Relations, NLRB

The National Labor Relations Board (NLRB) enforces and interprets the National Labor Relations Act (NLRA), which ensures the rights of employees to engage in collective bargaining and other union-related activities.  During the Obama administration, NLRB General Counsel Richard F. Griffin, Jr. aggressively advocated for labor-friendly positions, and the Democratic-majority Board often agreed.  But this Thanksgiving season, two new board members and a new General Counsel have set the table for changes that could make things a little easier for employers. Continue Reading

How the EEOC is Cracking Down on Equal Pay Act Violations in the Food Service Industry

Posted in Discrimination, Equal Employment Opportunity Commission

With the prevalence of gender discrimination lawsuits in the media and the increasing number of equal pay laws nationwide, employers in the food services industry would be wise to review their hiring and payroll practices as soon as possible to ensure that they are not unlawfully contributing to the gender pay gap, or otherwise retaliating against any employee who reports issues regarding pay disparity.

Continue Reading

New Jersey Update: What Phil Murphy’s Election Could Mean for Employers and Employees

Posted in Discrimination, Employee Leave Management, Government, Medical Marijuana, Minimum Wage, New Jersey Law, Wage & Hour

Yesterday, Democrat Phil Murphy won the race for New Jersey governor, easily defeating Republican Kim Guadagno. Democrats also retained their majorities in both the state Senate and Assembly.  When Murphy is sworn in next January, he will have the opportunity to change laws impacting the workplace.  Here are some areas for employers and employees in the Garden State to keep an eye on:

Raising the Minimum Wage

Murphy has promised to raise the minimum wage to $15 per hour. Last year, Democratic legislators introduced a bill that would have gradually increased New Jersey’s minimum wage from $8.38 to $15 per hour over a four-year period (as summarized by HR Legalist here).  Last summer, Governor Christie vetoed that bill.  With Murphy in the statehouse, the measure could be back on the table, and New Jersey could join California, New York, and the District of Columbia in making the move to $15 per hour. Continue Reading

Employer-Mandated Fingerprinting May be Religious Discrimination

Posted in Civil Rights, Discrimination, Reasonable Accommodation, Religious Discrimination, Retaliation, Terminations, Title VII of the Civil Rights Act, Workplace Policies

Sincerely believing that fingerprinting is “the mark of the devil” may be enough to sue your employer for religious discrimination and retaliation in federal district court.

On Monday, October 30th, Western District of Pennsylvania Judge Kim R. Gibson issued an Order declining to dismiss such a lawsuit at the initial, pleadings stage of litigation. The Plaintiff, Altoona school bus driver and devout Christian Bonnie F. Kaite, contends that she was unlawfully discharged for refusing to be fingerprinted in connection with a state-mandated background check, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Pennsylvania Human Relations Act (“PHRA”). Continue Reading

A Wage and Hour Time Bomb: Case Highlights the Scope of FLSA’s “Fluctuating Workweek” Method for Paying Overtime

Posted in Fair Labor Standards Act, Overtime, Wage & Hour

There are still quite a few unsettled questions regarding the details of how overtime compensation must be calculated and paid to employees under the Fair Labor Standards Act (FLSA).  Within these grey areas, collective and class actions thrive. The recently approved multi-million dollar settlement agreement in Acevedo v. BrightView Landscapes, LLC,[1] a hybrid collective/class action covering 27 states, illustrates how compensation plans not specifically endorsed by established case law or the Department of Labor’s (DOL) guidance on overtime compensation can lead to exposure for employers. Continue Reading

What #MeToo Means for Employers: Workplace Harassment in the Age of Awareness

Posted in Civil Rights, Discrimination, Equal Employment Opportunity Commission, Harassment, Retaliation, Social Media, Title VII of the Civil Rights Act, Workplace Investigations, Workplace Policies

This past Sunday, actress Alyssa Milano posted the following message on Twitter:

Me too. Suggested by a friend: “If all the women who have been sexually harassed or assaulted wrote ‘Me too.’ As a status, we might give people a sense of the magnitude of the problem.”

Since Ms. Milano’s original tweet, the hashtag #MeToo has been trending across multiple online platforms, with some users also posting about their own experiences. According to some estimates, over half a million people had posted on the topic by midday Monday.  This follows news of former Hollywood mogul Harvey Weinstein’s harassment of women over the course of several decades. Continue Reading

Feats of Strength: EEOC sues CSX for Employee Strength Tests as Gender Discrimination Under Title VII

Posted in Civil Rights, Discrimination, Equal Employment Opportunity Commission, Government, Hiring, Title VII of the Civil Rights Act, Workplace Policies

The EEOC recently filed suit against CSX Transportation, Inc. (“CSX”) in Federal Court in West Virginia, on behalf of a nationwide class of female employees.[1]  In the suit, the EEOC alleges that CSX’s policy of requiring employees and job applicants to pass certain physical strength tests in order to be eligible for certain positions has a disparate impact on women, and is therefore illegal sex discrimination under Title VII of the Civil Rights Act of 1964.   Continue Reading

Employee Classification and the Gig Economy – Court Leaves the Door Open for “On-Call” Time for Uber Drivers

Posted in Fair Labor Standards Act, Misclasification, Overtime, Wage & Hour

On September 13, 2017, U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania denied Uber’s Partial Motion for Summary Judgment in a putative class action brought by UberBLACK drivers in Philadelphia (Rezak, et al. v. Uber Technologies). In their original Class Action Complaint filed in January of 2016, the drivers alleged that Uber violated the Fair Labor Standards Act (“FLSA”) by misclassifying them as independent contractors and failing to pay them minimum wage and time-and-a-half overtime for hours worked over 40 per week.  Plaintiffs also argued that their time spent “on call” when logged into the Uber application is work time and therefore compensable.  Plaintiffs advanced this argument despite admitting that they conducted numerous personal activities while logged into the application while driving without Uber passengers, including: running errands, taking smoke breaks, and accepting personal phone calls. Continue Reading

Wage and Hour Update: Third Circuit Clarifies Standard for Showing Willful Violations in FLSA Overtime Claims

Posted in Fair Labor Standards Act, Wage & Hour

The Fair Labor Standards Act (FLSA) requires that employers pay time-and-a-half overtime to all non-exempt employees who work more than 40 hours in a workweek. Employers who fail to pay overtime may be liable for both the amount of unpaid overtime and liquidated (double) damages.

The statute of limitations for FLSA claims is two years from the date a claim is filed; however, that time period expands back to three years if the employee can show a willful violation. Continue Reading

Labor Law Update: Senate Confirms Emanuel to NLRB, 3-2 Republican Majority Signals Potential Changes on the Way

Posted in NLRB

As covered earlier by HR Legalist, the Trump Administration was expected to make changes to labor and employment law through appointments to federal agencies, including the EEOC and the National Labor Relations Board (NLRB).  At the time of the election, the 5-member NLRB had only 3 seats filled (2 Democrats and 1 Republican), giving Mr. Trump the opportunity to create a Republican-majority board. Continue Reading