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Recent Blog Posts

  • Ninth Circuit holds that inclusion of state law disclosures violates the FCRA’s “stand-alone” Requirement By Brian Hall    The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years.... More
  • NLRB overrules Obama-era precedent for independent contractor test By Brian Hall    On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status. Pursuant to two separate licensing agreements, SuperShuttle DFW operated shuttle vans to transport airline passengers at and... More
  • NLRB reverses Obama board trend on expansion Of Section 7 rights By Brian Hall    After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the... More
  • Court orders plaintiff in FMLA lawsuit to produce private social media content in discovery By Brian Hall    In many employment cases, the parties engage in a battle over content in the plaintiff’s private social media accounts. The recent decision from the U.S. District Court in Eastern District of Michigan in Robinson v. MGM Grand Detroit, LLC, Case No. 17-CV-13128 (E.D. Mich. 1/17/2019) illustrates well how an employer can demonstrate its right to this discovery. In Robinson, the plaintiff, a valet attendant for the defendant employer, filed a complaint alleging race and disability discrimination under Title... More
  • Ohio statutory amendments impacting joint employment claims against franchisors will go into effect on March 20, 2019 By Brian Hall    Nationwide, many states are amending their employment laws to address the uncertainty of the joint employment doctrine under federal law, as evidenced by the apparent conflict between the recent D.C. Circuit decision in Browning-Ferris Industries of California Inc. v. National Labor Relations Board and the Board’s proposed rules on the subject. In an effort to address this uncertainty, Gov. Kasich, before leaving office in December, signed H.B. 494 into law. Effective March 20, 2019, H.B. 494 amends the... More
  • Bureau of Consumer Financial Protection issues revised FCRA summary of rights form By Brian Hall    Section 301 of the federal Economic Growth, Regulatory Relief and Consumer Protection Act, which was signed into law on May 24, 2018, amended the Fair Credit Reporting Act (FCRA), effective Sept. 21, 2018, to require consumer reporting agencies (such as those that employers use for applicant and employee background check purposes) to include new language on the Summary of Rights form that explains a consumer’s right to obtain a security freeze to protect against identity theft. The statutory... More
  • U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues By Brian Hall    On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues: “No-fault” attendance policies and roll-off of attendance points under the FMLA Organ donors’ qualification for FMLA leave Compensability of time spent voluntarily attending benefit fairs and certain wellness activities Application of the commissioned sales employee overtime exemption to a company that... More
  • Sixth Circuit upholds agreement to arbitrate FLSA claims on individual basis By Brian Hall    On Aug. 15, 2018, the Sixth Circuit in Gaffers v. Kelly Services, Inc. held that the Fair Labor Standards Act (FLSA) does not render an arbitration agreement that requires claims to be brought individually illegal and unenforceable. Following the Supreme Court’s recent decision in Epic Systems Corp. v. Lewis, which held that a federal statute does not displace the Arbitration Act unless it includes a “clear and manifest” congressional intent to make individual arbitration agreements unenforceable, the court... More
  • Sixth Circuit finds insurance coverage for phishing losses By Brian Hall    The risk of loss due to some form of cyberattack should prompt employers to consider insuring against those losses. But, not all cyberinsurance policies are created equal. That point is made abundantly clear in the recent 6th Circuit case, American Tooling Center, Inc. v. Travelers Casualty and Surety Co. of America. The plaintiff, American Tooling Center, Inc. (ATC) is a Michigan-based manufacturer that subcontracts some of its manufacturing work to a Chinese vendor. During a time period that... More
  • Sixth Circuit upholds termination of human resources employee for employment application misrepresentations and performance deficiencies By Brian Hall    Agreeing with the district court’s assessment that “résumé misrepresentations by a senior human resources professional represent an infraction so egregious as to defy correction by mere counseling or other lesser discipline,” the 6th Circuit on April 23, 2018, rejected an appeal from a summary judgment order on claims of pregnancy, race, and age discrimination and retaliation in Bailey v. Oakwood Healthcare, Inc.. Michelle Bailey, a 40 year old African-American woman, was fired from her position as a senior staffing... More