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“Need To Know Basis” – A Good Rule Of Thumb Under The ADA

Brody and Associates, LLC • October 15, 2018
Under the Americans with Disabilities Act (“ADA”), employers have certain obligations regarding the non-disclosure of employee medical information and disabilities. For instance, under the ADA, information an employer obtains regarding an employee’s medical condition must be collected on separate forms, kept in medical files, and treated as a confidential medical record. In fact, it should be kept entirely separate from the rest of the personnel file.

Florida Jury Awards Former University Registrar $310,500 In Retaliation Suit

Jackson Lewis P.C. • October 15, 2018
A jury recently returned a $310,500 verdict in favor of a former University of South Florida employee on her retaliation claim against the University. DeBose v. USF Board of Trustees, et al, No. 8:15-cv-02787 (M.D. Fla. Sept. 26, 2018). The former employee, Angela DeBose, claimed she was retaliated against because she had filed internal race bias complaints with the University and a U.S. Equal Employment Opportunity Commission charge of discrimination.

OFCCP Issues Flurry of New Directives for Contractors

FordHarrison LLP • October 15, 2018
Executive Summary: Over the last two months, the Department of Labor’s (DOL) Office of Federal Contract and Compliance Programs (OFCCP) issued seven new directives under the OFCCP’s Acting Director and Deputy Director, Craig Leen. The following is a brief overview of the most important directives:

Political Speech in the Workplace: Is it Possible to Maintain Civility?

Littler Mendelson, P.C. • October 15, 2018
In the days leading up to the confirmation vote on Supreme Court Justice Kavanaugh, more than half of Americans said they had engaged in political discussions in the workplace about his confirmation battle, a recent online poll reported. The good news is more than three quarters of those conversations were characterized by participants as “civil” discussions. The not-so-good news is how many workplace conversations about his confirmation resulted in conflict, argument, or tears.

PODCAST: #MeToo One Year Later: An Update for Employers

Ogletree Deakins • October 15, 2018
Join Milwaukee attorneys Sarah Platt and Christine Bestor Townsend as they discuss how things have changed for employers in the era of #MeToo.

#MeToo: The Tweet Heard ’Round the World One Year Later

Ogletree Deakins • October 15, 2018
One year ago today, 10 days after the Harvey Weinstein story broke, Alyssa Milano tweeted: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”

The Practical NLRB Advisor: Fall 2018

Ogletree Deakins • October 15, 2018
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the fall 2018 issue of the Practical NLRB Advisor. This issue examines the Supreme Court’s decision in Epic Systems Corp. v. Lewis, which is destined to have a profound impact on the labor movement and on labor-management relations.

Employment Trial Report - 310k verdict

Jackson Lewis P.C. • October 14, 2018
A jury recently returned a $310,500 verdict in favor of a former University of South Florida employee on her retaliation claim against the University. DeBose v. USF Board of Trustees, et al, No. 8:15-cv-02787 (M.D. Fla. Sept. 26, 2018).

OSHA Clarifies Its Position On Post-Accident Drug Testing; States That “Most Instances of Workplace Drug Testing Are Permissible”

Jackson Lewis P.C. • October 14, 2018
In a memorandum to Regional Administrators dated October 11, 2018, OSHA clarified the agency’s position as to whether certain types of drug testing would be considered violations of 29 C.F.R. §1904.35(b)(1)(iv). That regulation prohibits employers from discharging or discriminating against an employee for reporting a work-related injury or illness.

Employers Brace for Hurricane Michael and Its Aftermath

Littler Mendelson, P.C. • October 11, 2018
This hurricane season has been chaos for those along the East Coast. Less than a month after Hurricane Florence rampaged through the Carolinas, Hurricane Michael—a category 4 storm—has made landfall in Florida, and is headed toward Alabama and Georgia.1 All states in the direct path of Michael have declared a state of emergency in response to the hurricane and recommend their citizens prepare for the worst. After the hurricane strikes, employers in Alabama, Florida, and Georgia will be faced with some important considerations.

National Coming Out Day: The Legal Pipeline Continues to Flow for LGBTQ Employees

Ogletree Deakins • October 11, 2018
An estimated 9 million adults in the United States are lesbian, gay, bisexual, or transgender. Eighty-seven percent of U.S. residents report knowing someone who is lesbian or gay, and half report having a close lesbian or gay friend.

“Doc, mind if I record this?” – Recording Visits Between Patients and Medical Providers

Jackson Lewis P.C. • October 11, 2018
In today’s world, people are accustomed to accessing endless information with their mobile phone. Accessibility to their own conversations regarding their health may not be any different. What happens when a patient wants to use this technology to preserve his or her access to medical information by recording their medical appointment? A recent study by the Dartmouth Institute for Health Policy and Clinical Practice examined patient recordings of clinical encounters and found they are becoming more common. However, like many trends related to advances in technology, such recordings present an array of complex legal issues.

Changing Stated Reasons For Termination Might Come Back To Bite You

Brody and Associates, LLC • October 10, 2018
Changing reasons for termination can be a real problem for employers. This is often a lesson management side labor and employment lawyers spout to their clients over and over again. One employer in Kansas unfortunately learned this lesson the hard way.

Airline Industry Alert: FAA Enacts Prompt Settlement Policy for Pilots Who are First-Time Violators of Drug and Alcohol Testing Regulations

FordHarrison LLP • October 10, 2018
Executive Summary: On October 1, 2018, a new Federal Aviation Administration (FAA) policy went into effect that allows commercial pilots who are first-time violators of certain drug and alcohol testing provisions the opportunity for prompt settlement with the FAA.

Top Labor Law Developments for August and September 2018

Jackson Lewis P.C. • October 10, 2018
President Donald Trump nominated Mark Gaston Pearce for a third term on the National Labor Relations Board (NLRB) on August 28. Pearce’s nomination came despite widespread criticism from Republicans and business groups who viewed Pearce as having taken an anti-business approach on many issues before the Board.

DOL Proposes Rule to Allow Younger Workers to Operate Patient Lifts in Healthcare Settings

Ogletree Deakins • October 10, 2018
On September 27, 2018, the U.S. Department of Labor (DOL) published a notice of proposed rulemaking expanding the employment, training, and apprenticeship opportunities for 16- and 17-year-olds in healthcare occupations by removing the prohibition on teen employees operating patient lifts. Currently, the DOL’s Child Labor Hazardous Occupations Order No. 7 bars teen employees from working in occupations that require the operation of power-driven patient lifts, treating these types of lifts essentially as equivalent to construction equipment. In the proposed rule, however, the DOL acknowledges that patient lifts differ substantially from construction equipment such as forklifts, backhoes, and cranes.

Increased Unannounced Site Visits from USCIS Fraud Detection Arm

Jackson Lewis P.C. • October 10, 2018
Historically, the U.S. Department of Labor’s Wage and Hour Division has been the primary auditor of companies using H-2B visa to hire temporary, seasonal workers. But amid debates over the cap on H-2B visas and an expressed need for more H-2B workers the USCIS’ Fraud Detection and National Security unit (FDNS) is getting into the mix and conducting unannounced site visits.

Employers: Keep Your Head In The Game! Are Some Employees Treated Better Than Others Because They Bring In The Big Bucks? Are Those Employees All Men?

Brody and Associates, LLC • October 09, 2018
A former NFL cheerleader for the New Orleans Saints recently filed a complaint with the Equal Employment Opportunity Commission (EEOC), the federal watch dog for employment discrimination statutes. She alleged the team treats its cheerleaders differently because they are women. While there is no outcome yet, it is a cautionary tale whose time has come.

FordHarrison's 50-State Restrictive Covenant Desk Reference

FordHarrison LLP • October 09, 2018
Because the laws surrounding post-employment restrictive covenants vary from state to state, FordHarrison attorneys are proud to present a 50-State Desk Reference which provides an overview of state laws addressing the enforceability of noncompetition and nonsolicitation agreements and associated issues. State laws on this issue are complex, and this manual is intended to highlight some of the significant provisions of each state law. For a copy of FordHarrison’s 50-State Restrictive Covenant Desk Reference, please contact

Appeals Court Upholds Decision limiting the Right of OSHA to Expand Inspections.

Fisher Phillips • October 09, 2018
We've waited for over a year to learn if the 11th Circuit Court of Appeals would uphold an earlier court decision saying that OSHA could not expand an injury-based inspection by arguing that injury records and an a Regional Emphasis Program justified the expansion. Not surprisingly, OSHA had appealed the earlier decision.decision.

Accommodating Pregnant Employees in the Workplace

Nexsen Pruet • October 09, 2018
Two new lawsuits cast light on employers’ obligations to provide job accommodations to pregnant employees.

PODCAST: FMLA FAQs: Answers to Employers’ Common Questions

Ogletree Deakins • October 09, 2018
The Family and Medical Leave Act (FMLA) continues to present challenging questions for employers. In this episode, Keith Kopplin and Sarah Platt of our Milwaukee office walk through some of employers’ most frequently asked questions on the FMLA, from when employers can ask for a medical certification to how to handle suspected FMLA fraud.

Workplace Sexual Harassment Prevention: One Year After #MeToo

XpertHR • October 09, 2018
The #MeToo movement has just celebrated its first anniversary after a year marked by a host of high-profile resignations and terminations across a number of industries.

Court Finds Standing Requirement for ADA Title III Claim Requires Plaintiff To Have “Concrete and Realistic” Plan to Return to the Hotel

Jackson Lewis P.C. • October 09, 2018
A recent Middle District of Florida decision granted the Defendant’s Motion to Dismiss Plaintiff’s claims for relief under Title III of the ADA based on Plaintiff’s lack of standing to bring such claims. In Kennedy v. Cape Siesta Motel (MD FL Oct 4, 2018) the Plaintiff claims she encountered architectural barriers upon her visit to a motel in Brevard County, Florida. The Plaintiff lives about 175 miles from the motel but has a second home about 79 miles from the motel which she visits two to three times a month.

Supreme Court Hears Case on Enforceability of Arbitration Agreements for Transportation Workers

Jackson Lewis P.C. • October 08, 2018
On October 3, 2018, the U.S. Supreme Court heard oral argument in New Prime Inc. v. Oliveira, No. 17-340. While the case turns on what may appear to be a simple question of statutory interpretation, the outcome could have profound consequences for employers throughout the transportation industry, for hundreds of thousands of independent owner-operators, and eventually for all consumers.

Why Robot Taxes Won't Work

Littler Mendelson, P.C. • October 08, 2018
Those who find their livelihoods threatened by disruptive technologies have long rallied against those new innovations, finding an ally in governments willing to slow adoption. Queen Elizabeth I’s declaration that all subjects wear knit caps, for example, created an industry and provided work to those who might otherwise not have had any. William Lee developed the stocking frame in 1589 to alleviate the time-consuming labor required to produce knit caps.

Man Bites Dog: Union Strikes and Publically Attacks Hotel Brand because of its Go Green Effort.

Fisher Phillips • October 08, 2018
We regularly remind employers that third parties, such as unions, and social justice and environmental groups, will use safety as a club to embarrass and bring pressure on a company. Sometimes, these third parties use workplace safety as such an issue even when it conflicts with other tenants of left-leaning groups, such as environmental responsibility or solar power.

EEOC Reminds Employers of the Importance of Targeted Screening and Individualized Assessment Processes

Ogletree Deakins • October 08, 2018
On September 24, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) reaffirmed the importance of following its 2012 enforcement guidance on employer use of criminal history information—specifically the EEOC’s targeted screening process and individualized assessment process--when it announced a voluntary agreement with large furniture retailer Rooms To Go. The agreement resolved allegations of race discrimination brought by an African-American job applicant whose offer of employment was rescinded based on Rooms To Go’s background check policies.

FMLA Leave for Chronic Health Conditions Requires Proof of Periodic Doctor’s Visits

Jackson Lewis P.C. • October 08, 2018
When an employee takes medical leave, treatment by a healthcare provider is often assumed, and the frequency of doctor’s visits is rarely scrutinized. The Pennsylvania federal court’s recent decision in Watkins v. Blind and Vision Rehabilitation Services of Pittsburgh alerts us that this is not always a wise approach. In evaluating FMLA leave entitlements, verifying continuing medical treatment can be well worth the trouble.

Notice 2018-76: Taking a Bite Out of the Business Expense Deductions for Meals, Entertainment

Jackson Lewis P.C. • October 08, 2018
On October 3, 2018, the IRS issued transitional guidance in Notice 2018-76 concerning the business expense deductions for meals and entertainment following the changes made by the Tax Cuts and Jobs Act (“TCJA”) — which generally disallowed a deduction for expenses related to entertainment, amusement or recreation, but did not specifically address the deductibility of business meal expense.

KFC Franchisee Pays $30,000 For Disability Discrimination Claim But It Could Have Been Worse!

Brody and Associates, LLC • October 05, 2018
A KFC Franchisee in Dublin, Georgia recently settled a disability discrimination case with a former manager who had bipolar disorder for $30,000. According to the Equal Employment Opportunity Commission (“EEOC”), the federal watch dog for anti-discrimination employment laws, the owner/operator found out the store manager was taking prescription medicine for her bipolar disorder. He then made her flush her medicine down the restaurant toilet. The store manager later told the owner she was going to continue taking the medication per her doctor’s orders, and the owner fired her. The store manager asserted a disability discrimination claim and the franchisee settled for $30,000.

OSHA Announces Renewed Focus on Trenching and Excavation Work

Littler Mendelson, P.C. • October 05, 2018
The U.S. Occupational Safety and Health Administration (OSHA) recently announced an update to its National Emphasis Program (NEP) on preventing trenching and excavation collapses.

EEOC Anti-Harassment Litigation, Enforcement Efforts See Dramatic Increase

Littler Mendelson, P.C. • October 05, 2018
The Equal Employment Opportunity Commission's (EEOC) litigation program brought 66 lawsuits alleging workplace harassment (41 alleging sexual harassment) in FY 2018, a more than 50% increase over the prior year, Acting Chair Victoria A. Lipnic announced in a report issued by the agency on October 4, 2018. Charges filed with the agency alleging sexual harassment increased by more than 12% over that same period, and the EEOC found cause to believe unlawful harassment had occurred in nearly 1,200 charges filed, an almost 25% increase over FY 2017. The agency recovered nearly $70 million for victims of sexual harassment, up from $47.5 million in FY 2017.

This Could Be A Game-Changer: Will Uber Provide Benefits For Drivers?

Fisher Phillips • October 05, 2018
During Fortune’s Most Powerful Women Summit earlier this week, Uber’s CEO Dara Khosrowshahi dropped a bombshell: the company wants to soon provide benefits to its drivers in an effort to close the gap between what is received by its contractor fleet and its employee workforce. If this comes to fruition, it could revolutionize the way that gig workers are compensated, could lead to even more people jumping into the gig worker pool—and could spark a renewed misclassification battle over contractor status.

Beltway Buzz, October 5, 2018

Ogletree Deakins • October 05, 2018
Kavanaugh and the Congressional Schedule. Earlier today, by a vote of 51-49, the U.S. Senate ended debate on the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. The vote was on party lines, though Sen. Joseph Manchin III (D-WV) voted “yes” while Sen. Lisa Ann Murkowski (R-AK) voted “no.” This sets up a final floor vote in the Senate late in the afternoon tomorrow. After that, Congress’s focus will be on the midterm elections. Indeed, it is unlikely that the Senate will address any major legislation between the Kavanaugh vote and the November 6 election, though there are still many unconfirmed nominees to various posts, and it is always possible that the Senate could move some of those before leaving town (the Senate’s last legislative day in D.C. is currently scheduled for October 26, but it could recess at any time). The U.S. House of Representatives is in recess until after the November 6 elections.

Student Loan Repayments or Retirement Savings? Maybe Both . . .

Ogletree Deakins • October 05, 2018
Recent statistics show that approximately 70 percent of college graduates will leave college with an average of at least $30,000 in student loan debt. Cumulatively, the national student loan debt is approximately $1.5 trillion. This burden is causing millennials to wait longer than previous generations to buy houses, start families, and save for retirement. Although student loan indebtedness is not an issue employers can solve alone, a few are finding ways to recruit and retain talent by offering a helping hand to employees dealing with massive debt burdens.

EEOC Sees Sexual Harassment Statistics Explode In Past Year

Fisher Phillips • October 05, 2018
The Equal Employment Opportunity Commission (EEOC) just released its preliminary findings examining sexual harassment in the workplace over the past year, and, in wake of the #MeToo movement, no one should be surprised to see the figures rise dramatically. The numbers demonstrate that employers need to be more vigilant than ever when it comes to addressing issues of harassment and discrimination in the workplace.

New SCOTUS Term Starts With A Whimper...Will It End With A Bang?

Fisher Phillips • October 05, 2018
he Supreme Court term that wrapped up in June was one of the most exciting sessions for workplace law in recent memory, with several blockbuster decisions impacting a wide range of labor and employment law issues. From wage-and-hour exemptions to same-sex wedding cakes, class action waivers to agency shop fees, retaliation standards to travel bans—the past term had it all. So employers might be eagerly anticipating the current term, hoping for a repeat performance.

Another Court Decides That Extended Leave is Not a Reasonable Accommodation

Jackson Lewis P.C. • October 05, 2018
As employers struggle with managing how much, if any, leave is required as an accommodation under the ADA, we are beginning to get more direction from the Courts to guide those decisions. In Easter v. Arkansas Children’s Hospital (E.D. Ark. Oct. 3, 2018) an employee was unable to work after exhausting her FMLA leave but she had an appointment to be evaluated by a specialist less than a month later. The employer denied the additional leave and terminated her employment. The Court held there was no violation of the ADA.

OFCCP Seeking Comment on Contractor Disability Inclusion Recognition Program

Jackson Lewis P.C. • October 05, 2018
Appearing in today’s federal register is OFCCP’s request for comment on the proposed structure and details of the agency’s new Excellence in Disability Inclusion Award. The award