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Recent Blog Posts

  • 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
  • Wage and Hour Division announces pilot limited “amnesty” program By Brian Hall    The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced a new nationwide pilot program, called the Payroll Audit Independent Determination (PAID) program, which is designed to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the WHD’s website describing the program, the program’s primary objectives are to resolve wage and hour claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations... More
  • NLRB establishes new standard for evaluating employee handbook policies By Brian Hall    The new Republican-led National Labor Relations Board (NLRB) has wasted little time in reconsidering decisions made during the Obama Administration. In its Boeing, Inc., decision, announced on Thursday, Dec. 14, 2017, the board overturned its Lutheran Heritage Village-Livonia decision that has guided its evaluation of employee handbook policies for the past 13 years and most recently has come under intense criticism from the employer community for chipping away at common employee handbook policies. During the past eight years, the... More
  • How employers can help employees after a natural disaster By Brian Hall    In recent months we have seen a significant number of natural disasters – from Hurricanes Irma to Harvey to Maria and the massive wild fires crossing Northern California. Our colleague, Abby Brothers, shares the tax-free options employers can use to support their employees and communities. Check out her full post on Employee Benefits Law Report, “Federal disaster relief available to employees in aftermath of natural disasters.”... More
  • Texas district court strikes down Obama DOL’s proposed overtime rule By Brian Hall    Many thanks to Arslan Sheikh for his assistance in preparing this post. Last week, a federal judge in Texas struck down a proposed Obama-era rule that would have expanded the number of workers who qualify for overtime pay under the Fair Labor Standards Act (FLSA). The proposed rule In 2016, the Obama administration’s Department of Labor (DOL) planned to implement a new rule that would have more than doubled the minimum salary threshold for “exempt” status under the FLSA from... More
  • Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute By Brian Hall    In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by... More