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• More news from the NLRB on work rules By Arslan Sheikh    The Obama-era NLRB sometimes gave employers fits with decisions and guidance concerning employer work rules. It was common for the Obama-era Board to strike down fairly common, neutral work rules, often based on the idea that employees might interpret the rules to restrict employee rights. It did not take long for Trump-era NLRB appointees, however, to put their stamp on National Labor Relations Act law (see our article about some early actions by Trump NLRB appointees). The current... 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
• U.S. Supreme Court rules that public sector unions may no longer collect fees from nonmembers By Arslan Sheikh    On Wednesday, June 27, 2018, the United States Supreme Court ruled in a 5-to-4 decision that the application of public sector union fees to nonmembers is a violation of the nonmembers’ First Amendment rights. The Court’s decision in Janus v. AFSCME overturns precedent established in a 1977 Supreme Court decision, Abood v. Detroit Board of Education, where the Court allowed the collection of union fees from nonmembers for collective bargaining related costs, excluding lobbying and political expenses. In... More
• Final association health plan regulations provide opportunity for small employers…maybe By Seth Hanft    In February, we reported that the Department of Labor (DOL) issued a proposed rule that could make it easier for small businesses to join together to purchase health insurance. That proposed rule sparked considerable debate on the general merits of association health plans (AHPs), as well as on the nuances of the proposed rule. Some commentators and experts remained skeptical of such arrangements, citing to the history of AHPs being used as a vehicle for fraud. Others were... More
• Adding more confusion to the world of website accessibility, WCAG 2.1 has been published By Jamie LaPlante    As many of you know, we have been keeping up on the growing litigation involving the accessibility of websites under the Americans with Disabilities Act (ADA) in our past posts: “Florida federal judge holds that supermarket chain’s website must be accessible to disabled” and “ADA public accommodations law reform on its way?” Many stakeholders have urged that websites of businesses that operate public accommodations should be accessible to the WCAG 2.0 AA standard. WCAG is the Web Content... More
• Uber app decision in California highlights ongoing litigation for website and app accessibility By Jamie LaPlante    A California federal court refused to dismiss a case against Uber alleging that its app did not offer accessible ride options even though the plaintiffs failed to even download the app. In Crawford v. Uber Tech. Inc., the Northern District of California denied a motion for judgment on the pleadings based on a lack of standing. Uber alleged that the plaintiffs lacked standing to challenge its mobile application because both users admitted that they never download the app. The... More
• New DOL opinion letter may provide clarity as to when FMLA-mandated breaks are paid and when they are unpaid By Jamie LaPlante    As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid. The opinion letter resolved an apparent conflict between the Fair Labor Standards Act (FLSA) and... More
• U.S. Supreme Court rules that mandatory, individual arbitration of employment disputes trumps employees’ rights to participate in class action lawsuits By Franck Wobst    On Monday, May 21, 2018, the United States Supreme Court ruled in a 5-to-4 decision that employers may require workers to accept individual arbitration for wage and hour and other workplace disputes rather than banding together to pursue their claims in class actions in federal or state courts. The Court’s decision in Lewis v. Epic Sys. Corp. overturns the position of the National Labor Relations Board (NLRB) and resolves a split among federal courts of appeals. The case is... More
• New test should increase employer ability to create unpaid internship positions By Arslan Sheikh    Many employers allow students to intern in their workplaces so that the students can gain exposure to real world work, learn about a particular industry or career, or earn credit hours towards their degree requirements. If these interns are unpaid, however, employers risk liability for failure to pay minimum wage and overtime under the Fair Labor Standards Act (FLSA). Employers that enter into these arrangements without careful consideration of the FLSA risk lawsuits from former interns and United... 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