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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
• Does your workplace foster a culture of safety? New OSHA memo relaxes rule on drug testing policies and incentive programs By Jourdan Day    In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies. On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this... More
• New tax credit rewards companies that offer paid FMLA leave in 2018 and 2019 By Arslan Sheikh    The federal Tax Cuts and Jobs Act of 2017 contains an often-overlooked tax credit for employers that provide qualifying types of paid leave to their full- and part-time employees. The credit is available to any employer, regardless of size, if: The employer provides at least 2 weeks of paid family and medical leave annually for employees who have been with the company for at least 12 months The paid leave is at least 50 percent of the wages normally paid... More
• Voluntary abandonment doctrine strengthened by Ohio Supreme Court By Rebecca Kopp Levine    On Sept. 27, 2018,the Ohio Supreme Court took the unusual step of overturning two prior decisions in an attempt to clarify a confusing aspect of workers’ compensation law. A long-standing tenet of workers’ compensation law, temporary total disability compensation, is intended to compensate an injured worker when they are unable to work due to a work-related injury. To be entitled to temporary total disability compensation, an injured worker must be medically unable to work and the inability... 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
• Sixth Circuit decision shows similarly situated employees must truly be similarly situated in discrimination cases By Adam Bennett    Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class. The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to... More