News & Analysis

NLRB General Counsel issues guidance on lawful handbook policies

Nonunion employers often believe they don't have to worry about decisions from the National Labor Relations Board (NLRB). Well, think again! On March 15, 2015, NLRB General Counsel Richard F. Griffin issued a 30-page memo (Memorandum GC 15-04) that provides guidance on handbook policies the NLRB considers unlawful. The memo focuses on employer rules that may violate Section 7 of the National Labor Relations Act (NLRA) by prohibiting protected concerted activity. Section 7 of the NLRA gives employees the right to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

2015 Florida legislative session: a preview of employment-related bills

The 2015 legislative session has convened in Tallahassee, and as happens every year, there are a number of pending bills that could affect Florida businesses' employment policies. This article provides an overview of some of the key bills that, if passed by the legislature and signed into law by Governor Rick Scott, could influence the way employers do business in Florida.

Allowing only 'light-skinned' employees to interact with patient was race discrimination

A federal judge in Tampa has ruled in favor of an African- American licensed practical nurse (LPN) who was removed by a hospital from caring for a patient because of her race. At first blush, that may sound like the obviously correct result to you, but let's look at the hospital's side of the story.

New DOL rule will simplify FMLA administration for multistate employers

The U.S. Department of Labor (DOL) has issued final regulations that will settle a confusing area of Family and Medical Leave Act (FMLA) administration for multistate employers. The regulations, effective March 27, adopt the "place of celebration" rule instead of the "place of residence" rule when establishing a spousal relationship for purposes of federal medical and military leaves.

'Sign here or go home—you have 5 minutes'

Employers present employees with all sorts of documents for their signature: new-hire paperwork, performance evaluations, handbook acknowledgments, and disciplinary write-ups, among other things. Sometimes, an employee may refuse to sign a certain document or claim that he was forced to sign it under duress. In one recent case, an employer successfully defeated an employee's duress argument despite facts that may strike some as coercive.

Moonlighting during FMLA leave

Q I have an employee out on Family and Medical Leave Act (FMLA) leave for 10 weeks to care for her spouse, who has a serious health condition. During her leave, she was seen working for another company in a local retail store. I believe that if she can work for that store, she can also return to work for me. I view this as fraud. Is there anything I can do?

Employer not responsible for employee's postshift accident

Many manufacturers require employees to work long hours to satisfy production demands. After an employee fell asleep while driving home after an overtime shift, a car accident victim sued both the employee and the employer for negligence. A court determined that the employer owed no duty to the plaintiff and was not liable for the accident.

Beware the limits on your property rights

The United States is the birthplace of modern democracy. The right to private property is one of the principles that helped make this country great and is one of the ideals upon which this country was founded. Indeed, private property rights are enshrined in the Fifth Amendment to the U.S. Constitution.

Employer's 'dawdling' revives employee's retaliation claim

A recent ruling from the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Indiana employers) provides helpful guidance on a simple employer misstep that led a seemingly defensible retaliation claim to a jury trial: dawdling. In Ledbetter v. Good Samaritan Ministries, an employer responded to an employee's retaliation claim by stating it made the decision to terminate the employee before he engaged in protected activity (filing an Equal Employment Opportunity Commission (EEOC) charge). However, the employer delayed communicating the termination decision to the employee until the day after it learned that he had filed a second discrimination charge with the EEOC. This case shows the risks that are associated with waiting to convey a termination decision to an employee.

Court: Even under ADAAA, being 'ill-tempered' is not a disability

Ever since the ADA Amendments Act of 2008 (ADAAA) became law and substantially expanded the definition of "disability," employers have been warned not to focus on whether an employee has a disability when evaluating reasonable accommodations. While that warning is valid, it is not absolute, and employers should not completely skip evaluating whether an employee has a disability. Even the 9th Circuit, where employees typically fare relatively well, has found that "cantankerous" and "ill-tempered" employees who are disciplined for treating coworkers and subordinates inappropriately do not have a disability that substantially limits the major life activity of interacting with others.