Archives: Employment Policies

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The Elephant in the Corner … Do You Have to Pay Employees for Checking Work Email?

Connectivity is addictive. Managers text and email staff 24/7; workers check their phones incessantly 24/7. How often? Okay, here are the actual numbers from a recent Gallup poll: 11% check it every few minutes; 41% a few times an hour; and 20% of Americans claim once an hour. If you haven’t checked in last 60 … Continue Reading

Don’t Cry Over Spilled Milk: Best Practices for Handling Nursing Employees

“First comes love, then comes marriage [or not – no judgment], then comes the baby in the baby carriage” and then – for nursing working mothers – comes expressing milk at the workplace. Nursing employees are currently afforded workplace protections under several major federal laws; plus, many state and local governments have expanded these federal … Continue Reading

Retaliation Claims Under The False Claims Act: A Pop Quiz

President Lincoln signed the False Claims Act (FCA) in response to scoundrels who sold the Union Army “gunpowder” kegs full of sawdust, uniforms sewn with used rags that disintegrated when wet, and boots made of cardboard that fell apart when worn. To incentivize citizens to protect the government, the FCA provided a bounty to individuals … Continue Reading

Is a Severance Policy More Like an ERISA Plan, a Writing Desk, or a Raven?

… The Hatter opened his eyes very wide on hearing this; but all he said was, “Why is a raven like a writing-desk?” …“Have you guessed the riddle yet?” the Hatter said, turning to Alice again.  “No, I give it up,” Alice replied. “What’s the answer?”  “I haven’t the slightest idea,” said the Hatter.  “Nor … Continue Reading

Is There Really An Obligation To Provide Miranda Warnings In Employee Interviews?

Investigations of employment-related claims routinely require employee interviews. Reports of sexual harassment, picket line misconduct, or whistleblowing all trigger such investigative interviews. Conventional wisdom suggests that employers and their counsel should ask the interviewees to maintain what is covered in confidence and even to document that confidentiality commitment in writing. But, developments on multiple fronts … Continue Reading

Defining ADA Disabilities in a DSM-V World

Charles Dickens and his characters lived in a pre-ADA world. Yet, those struggling with the definition of “disability” under the ADA share the same frustration as Mr. Bumble in Oliver Twist: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass — a idiot.’” Under … Continue Reading

Brave New World: Evolving Protections For Transgender Employees

Aldous Huxley wrote in his novel Brave New World that “If one’s different, one’s bound to be lonely.” With increased visibility (Orange is the New Black’s Laverne Cox; Caitlyn Jenner), transgender people are both less different and less lonely. State anti-sex discrimination laws are expanding to include explicit protections for transgender employees. Currently, nineteen states … Continue Reading

Accommodating Religion: Ignorance Is Not Bliss

Title VII imposes an obligation to accommodate religion, including “all aspects of religious observance and practice, as well as belief.”  42 U.S.C. § 2000e, subd. (j).  This obligation has drawn renewed attention following the U.S. Supreme Court’s decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (June 1, 2015). … Continue Reading

Politics In The Workplace

The 2016 election cycle promises to be hyperactive, starting early and running hot debates both on television and spilling over into the workplace.  It is, of course, a truism that life spills over into the workplace: the NCAA basketball tournament costs almost $2 billion in lost productivity every year. Given the interplay of politics and … Continue Reading

Want To Save Your Policies From The NLRB’s Sickle? Add Examples.

Employers who don’t want their policies sliced down by the National Labor Relations Board’s sickle, something that can spur union organizing and undermine disciplinary structure, should revise their policies (in handbooks or elsewhere) with specific examples of prohibited conduct. That’s the way, according to the little-noticed March 18, 2015 memo from the NLRB’s General Counsel, … Continue Reading

Who Ya Gonna Call? Recommended Best Practices For Whistleblower Hotlines

Whistleblowers create huge potential liability. Under provision of the Dodd-Frank Act, the SEC has awarded $14 million and $30 million to whistleblowers providing information that led to an SEC enforcement action.   Meanwhile, a California plaintiff received a multi-million dollar jury verdict under Sarbanes-Oxley (“SOX”) for retaliation after refusing the CFO’s demands to set aside executive … Continue Reading

Tattoo-ism: Where Body Art Meets Employment Discrimination

Tattoos and body piercings have become increasingly prevalent in the U.S. — over 20% of adults are now tattooed. This number only will be increasing because 38% of millennials (born from 1981-1992) have tattoos, approximately half of whom have two or more, while 23% of millennials have body piercings. More of a concern for employers, … Continue Reading

Allergic At Work Is Not Allergic To Work

Food allergies are widespread. Anyone who has a child, works at or with a school, or reads extensively knows that the increasing prevalence of food allergies among children is one of today’s biggest medical mysteries, not to mention a huge problem. The number of children with nut allergies has more than quadrupled since 1997, which … Continue Reading

Be Like Mike? Enforcing Restrictive Covenants Against Unique Employees

Restrictive covenants, in which an employee agrees for a certain period of time to refrain from working for a competitor or from soliciting away the company’s clients or employees, have become commonplace.  Companies in industries from finance to consumer products routinely request such covenants.  Some states, including California, Florida, Georgia and Texas, have statutes governing … Continue Reading

What Recent Case Law Can Teach About BYOD Workplaces

Bring Your Own Device (“BYOD”) is a movement that is changing the IT landscape of workplaces.  In a BYOD workplace, employees use their own mobile device—smartphones, tablets, laptops, etc.—for both work and personal use.  Employees benefit from the dual use of a comfortable and known device while employers enjoy increased productivity and reduced technology costs.  … Continue Reading

Every Dog Has His Day – Even at Work

Some start-ups are already doing it.  And, other companies are considering the cost-benefit analysis of allowing employees to bring their pets to work.  However, much like an unfamiliar dog, pet policies have to be handled with care.  Upsides (improved morale for and recruitment of pet lovers) are counterbalanced by downsides (allergies, phobias, or messes).  Thus, … Continue Reading

Antitrust Class Actions Against Employers: A Silicon Valley Special?

One substitute for non-competes with employees is a no-hire agreement with competing employers. As the continuing litigation toll in the Silicon Valley illustrates, that option is illusory: • the most recent class action accuses Dreamworks and other animation companies of conspiring to fix workers’ pay by refusing to hire from competitors (Nitsch v. Dreamworks Animation … Continue Reading

Andrew Carnegie’s Advice On Corporate Matching And Avoiding Criminal Prosecutions

Many employers have matching programs for charitable contributions. Under such policies, the employer donates dollars equal to each employee donation to any 501(c)(3) organization. This is American capitalism at work; this is precisely and exactly what Andrew Carnegie advocated in his epochal book The Gospel Of Wealth in 1889. But, business life is riskier 125 … Continue Reading

“No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection?

Recent headlines from the Silicon Valley suggest that “no-hire” agreements are illegal, immoral, and unsustainable. But, those headlines address blanket restrictions negotiated between competitors. Targeted restrictions between supplier company and customer company are entirely different. The Department of Justice’s Competitive Impact Statement (“DOJ CIS”) in those Silicon Valley cases acknowledges that distinction: “An agreement that … Continue Reading

Analytics and . . . Employment Law?

Moneyball (both book and movie versions) portrays a baseball team’s general manager, Billy Beane (Brad Pitt in the movie), who eschewed conventional wisdom and instead relied on data analytics to build a successful team on a limited budget. But sabermetrics is no longer confined to sports. The Atlantic, in a feature story on this crossover … Continue Reading
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