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Employment Law Blog

Google, Facebook End Forced Arbitration After Employee Walkouts

In May, the U.S. Supreme Court ruled in Epic Systems Corp. v. Lewis that individual arbitration clauses in employment contracts are enforceable under the Federal Arbitration Act. Therefore, employers can require, as a condition of employment, employees to agree to resolve their employment law claims individually in arbitration rather than taking them to court or attempting to act collectively.

Individual arbitration is widely considered to be advantageous to employers for a number of reasons, so employers were expected to begin requiring it broadly.

How Can Companies Deal Legally With Employee Opioid Addiction?

With the opioid crisis running rampant, many companies have employees who are suffering from this addiction. According to the National Institute on Drug Abuse, between 8 and 12 percent of those prescribed opioid painkillers will develop an opioid use disorder. The Centers for Disease Control and Prevention reports that over 350,000 people died from opioid overdoses between 1999 and 2016.

There's a fair chance that someone in your organization is dealing with an opioid painkiller addiction. Before you react, you should be aware that the employee may have rights under the Americans With Disabilities Act (ADA) and the Maryland Fair Employment Practices Act (FEPA). A history of drug addiction is considered a covered disability, as may be the underlying condition for which the painkillers were prescribed. Employers cannot discriminate based on disability and must offer reasonable accommodations to employees with covered disabilities.

DOJ Argues That Title VII Does Not Cover Transgender Employees

Title VII of the Civil Rights Act of 1964 is one of our nation's main civil rights law. Among other things, it prohibits covered employers from discriminating in any aspect of employment based on race, color, religion, sex or national origin. Questions have arisen over time, however, about the breadth of the law's coverage when it comes to sex. Is it illegal to discriminate based on homosexuality? Against someone who doesn't comply with sexual stereotypes? Against transgender people?

The Equal Employment Opportunity Commission and many courts have found that issues such as pregnancy, sexual orientation and gender non-conformity are not just related to gender but are crucial to the definition of gender. Therefore, these aspects of gender are protected by Title VII.

Employee, Employer Groups Testify On DOL's Proposed Overtime Rule

In 2016, the Obama administration's Labor Department proposed a change to the overtime rule in the federal Fair Labor Standards Act. That change would have increased the exempt salary threshold, which is the minimum amount employees must earn in order to be classified as exempt from the FLSA's overtime requirement. However, the change was blocked by an appellate court. Now, the Trump administration's DOL is considering its own changes to the overtime rule, and employer and employee groups testified about their concerns at an Oct. 17 hearing at the DOL.

The 2016 rule would have increased the exempt salary threshold from its current level of $23,660 to $47,476, or nearly double. (To be exempt, workers not only meet the salary threshold but must also meet a specific exemption, such as the executive, administrative or professional exemptions defined in the FLSA.)

Employees Not Paid For Work May Be Entitled To Three Times More

Whether you are an employee or employer, no one likes the idea of layoffs. But regardless of which side you may fall on, it is important to remember that Maryland law specifically outlines how -- and when -- a terminated employee must be paid.

In fact, Maryland law expressly states that employers are required to pay terminated employees for all the work they completed before they were terminated. This payment must be made on, or before, the day the employees would have otherwise been paid had they not been terminated.

EEOC: Sexual Harassment Charges Jumped By 12 Percent In FY 2018

The Equal Employment Opportunity Commission's fiscal year 2018 closed just a few days before the anniversary of the first stories about media mogul Harvey Weinstein's alleged sexual misconduct. Outrage against Weinstein and others in Hollywood began a national reckoning in which powerful men in media, politics, journalism and other fields have been publicly accused of sexual harassment, assault and misconduct.

That reckoning appears to have resulted in a substantial increase in the number of sexual harassment complaints received by the EEOC. That is of particular interest because sexual harassment claims had been in steady decline since 2010. There hadn't been more than 7,300 claims filed since 2012, but in 2018 that number is likely to be around 7,500.

ADA, Arbitration Among Employment Law Issues Before Supreme Court

Now that Justice Brett Kavanaugh has been sworn in, there is a full slate of justices on the U.S. Supreme Court. Their new term began Oct. 1, and the court jumped right in to hear oral arguments about an age discrimination case.

Other cases before the court involve the drafting and enforceability of arbitration agreements. Those have been a hot topic recently due to the court's May decision in Epic Systems Corp. v. Lewis, which upheld their use in employment contracts. Here are some previews:

Companies Offering Paid Family And Medical Leave Get Tax Credit

The Treasury Department recently announced that the 2017 Tax Cuts and Jobs Act offers most employers a substantial tax credit for providing paid family and medical leave. How substantial? Between 12.5 and 25 percent of the wages paid. Moreover, it's possible to take the tax credit retroactively this year as long as you put the required policies in place before Dec. 31. And, your short-term disability policy may qualify you for the credit.

To qualify, you must have an employer-employee relationship as defined by the Fair Labor Standards Act.

EEOC Accuses Walmart Of Failing To Accommodate Pregnant Workers

The Pregnancy Discrimination Act of 1978 is a federal law that prohibits employment discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." In 2015, The U.S. Supreme Court ruled in Young v. United Parcel Service, Inc., that employers must offer accommodations to pregnant employees that are at least equivalent to those provided to employees with disabilities.

In the Young case, a part-time UPS driver became pregnant and was medically restricted from lifting more than 20 pounds. At the time, UPS drivers were required to be able to lift 70 pounds. UPS offered light-duty assignments for people with injuries or disabilities but refused to provide Ms. Young with the identical accommodation because she wasn't injured or disabled.

Different Promotion Standards For Women Risk Discrimination Claims

"Although Title VII was passed more than 50 years ago, women nationwide continue to be passed over for promotion because of their sex," says one EEOC regional attorney.

Passing over qualified candidates based merely on their sex violates Title VII of the Civil Rights Act of 1964, which prohibits most gender-based discrimination. To avoid potential liability for sex discrimination, employers would be advised to adopt objective criteria for promotions that are used to evaluate every candidate.

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