HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

#Metoo reaches the federal courts

Posted in Civil Rights, General Labor and Employment News and Updates, Harassment, Retaliation, Title VII of the Civil Rights Act, Workplace Investigations, Workplace Policies

On July 3, 2018 the United States Court of Appeals for the Third Circuit[1] ruled on the case of Minarsky v. Susquehanna County et al, 17-2646 (Jul. 3, 2018). The case clarifies and limits the scope of the Faragher-Ellerth affirmative defense in workplace harassment cases.

Established by the Supreme Court in 1988, the Faragher-Ellerth defense  provides the employer a defense to workplace harassment claims when it can show that (1) it exercised reasonable care to prevent harassment and to promptly correct it when it might occur; and (2) that the employee failed to reasonably take advantage of preventative or corrective measures provided by the employer, or to otherwise avoid harm.  Usually, this means that if the employer implements a policy prohibiting harassment, and the employee fails to report harassment that violates that policy, then the employee cannot successfully bring a harassment claim.  Because this is an affirmative defense, the employer must prove both of the above elements to avoid liability. Continue Reading

Non-Compete Agreements and H-1B Visa Workers

Posted in Employment Agreements, H-1B, Hiring, Immigration, Noncompetition Agreements, Restrictive Covenants


Some employers require employees to enter into non-competition agreements at the time of hire, preventing them from competing with their employer during employment and during a certain time period after their employment ends. Non-compete agreements are often presented to employees with access to intellectual property, trade secrets, customer lists, business plans and strategies, and other valuable information that could potentially allow the employee to engage in unfair competition after leaving employment.  Along with confidentiality, non-disclosure, and non-solicitation agreements, non-compete agreements are important tools to protect an employer’s business.  However, asking a foreign worker with an H-1B visa  to enter into non-compete agreement can present additional complications. Continue Reading

Pennsylvania Supreme Court to Review Fluctuating Workweek Method for Overtime Compensation

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

The fluctuating workweek (FWW) method is a way for employers to calculate overtime pay for salaried employees who are eligible for overtime pay, but whose working hours fluctuate each week.  The FWW method has two components that reduce the amount of overtime payments due to eligible employees: (1) the “regular rate” used to compensate the employee is based upon all hours worked during the workweek (instead of the standard 40 hours); and (2) the employee is only paid an overtime rate of one-half of the regular rate for any hours worked over 40 during that workweek (instead of the standard “time and a half” overtime requirement).

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Supreme Court Rules Against Public Sector Unions, Disallows “Fair Share” Fees for Public Employees

Posted in Free Speech, Government, Labor Relations, Supreme Court

Today the Supreme Court ruled, in a 5-4 decision, that public sector employees who are not members of a union cannot be forced to pay union fees covering the costs of collective bargaining (Janus v. AFSCME).  In doing so, the Court overruled a 1977 case that allowed these so-called “agency fees,” and held that these fees violated the free speech rights of non-union employees.   This ruling will have a significant impact on the finances of unions that represent public sector employees across the country. Continue Reading

New Jersey Employers Should Prepare for New Equal Pay Law Effective July 2018

Posted in Uncategorized

Earlier this year, New Jersey Governor Phil Murphy passed  landmark equal pay legislation, which will take effect on July 1, 2018 and impact employers statewide.  The Diane B. Allen Equal Pay Act  (Act), expands employee rights under the New Jersey Law Against Discrimination (LAD), and prohibits employers from paying an employee who is a member of any protected class a lower rate of compensation or benefits than an employee who is not protected and who performs “substantially similar work.”  Unlike some equal pay laws that focus on gender, the Act applies to employees of all protected categories under state law, including, but not limited to: gender, race, national origin, ancestry, age, sexual orientation, military status, disability, and marital status.  The law does not specifically define “substantially similar work”; however, the statute states that it this term will be viewed in light of the employees’ respective skills, effort and responsibility. Continue Reading

Supreme Court Issues Narrow Ruling in Same-Sex Wedding Cake Case

Posted in Discrimination

On Monday, the U.S. Supreme Court reversed a ruling of the Colorado Civil Rights Commission (the “Commission”) that a cake shop violated the state’s anti-discrimination act by refusing to bake a wedding cake for a same-sex couple for professed religious reasons.  This case is the latest in a series of high-profile cases pitting the religious beliefs of business owners against the rights of LGBTQ customers.   Continue Reading

Class Action Settlement Reminds Restaurant Industry of the Notice Requirements for Paying Tipped Workers

Posted in Fair Labor Standards Act

The minimum wage requirements under the Fair Labor Standard Act (FLSA), as well as many state laws including Pennsylvania, allow tipped workers to be paid a lower hourly rate than non-tipped workers. However, those laws require companies to comply with a strict set of requirements in order to take advantage of that lower rate. Failure to do so can lead to expensive litigation, as demonstrated by a $2.1 million class action settlement recently approved in Koenig v. Primanti Corp.[1] Continue Reading

U.S. Supreme Court Upholds Class Arbitration Waivers

Posted in General Labor and Employment News and Updates

The U.S. Supreme Court yesterday decided Epic Systems Corp. v. Lewis, 16-285 (May 21, 2018), upholding employment contract provisions that require employees to arbitrate their disputes with the company individually rather than on a class-wide basis. This resolves a split among the circuit courts of appeals, creating certainty and uniformity for employers across the country. Continue Reading

New Jersey Paid Sick Leave Bill Passes – How will it Affect Your Organization?

Posted in Paid Sick Leave

On May 3, 2018, New Jersey became the tenth state to require employers to provide their employees with paid sick leave.  The new legislation, which will go into effect on October 29, 2018, preempts existing paid sick leave laws in 13 New Jersey municipalities, and introduces a statewide minimum amount of paid sick leave in the private sector.  This latest development is part of an expansion of employee rights under new Governor Phil Murphy and the Democrat-controlled state legislature, as predicted by HR Legalist. Continue Reading

Domino’s Pizza Delivery Drivers File Lawsuits Against Three Colorado Franchises

Posted in Fair Labor Standards Act

Three wage and hour lawsuits were filed recently by food delivery drivers as class and collective actions against three Colorado-based Domino’s Pizza franchise groups.  The lawsuits, which were “delivered” to federal court on April 20th and 21st, seek unpaid minimum wages and overtime based on an allegedly improper expense reimbursement formula for wear and tear on the drivers’ personal vehicles.  The lawsuits seek damages under both the federal Fair Labor Standards Act (FLSA) and Colorado State wage and hour law. Continue Reading