Suppose an employer transfers an employee, and that employee believes that unlawful bias fueled the decision. Does that transfer have to significantly disadvantage that employee to give rise to a...
Yesterday, the Federal Trade Commission announced that it would hold a “special open Commission meeting” on April 23 to vote on whether to issue a proposed final rule that would prevent most ...
https://www.theemployerhandbook.com/next-week-the-feds-will-vote-on-whether-to-ban-most-noncompetes/
At long last, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing the Pregnant Workers Fairness Act (PWFA), has issued a final rule to implement the...
I want to tell you about an Army reservist whose employer investigated him for taking fraudulent leave. That investigation spawned a grand jury indictment for theft. The employee was booked, deta...
A white man filed a lawsuit against a company claiming that it denied him a high-six-figure executive position because of his race, age, and sex so that the company could search for more diverse ...
https://www.theemployerhandbook.com/have-you-ever-heard-of-an-intersectional-discrimination-claim/
Often, an employer has affirmative defenses when an employee accuses a supervisor of sexual harassment. But Title VII of the Civil Rights Act of 1964 makes liability automatic in two ways. First,...
Congress has considered legislation several times that would prohibit employers from discriminating based on an individual’s hair texture or hairstyle if that hair texture or that hairstyle is ...
The words “cisgender” or “non-transgender” employee appear nowhere in Title VII of the Civil Rights Act of 1964, the federal workplace law that outlaws gender discrimination. But, accordi...
After taking a few days off and rocking out in Seattle, I’m back to blogging about employment law. 🤘🤘🤘 Today, we pull back the curtain and reveal how the U.S. Equal Employment Opportun...
Like The Rock laying the smack(eth) down on Cody Rhodes in a Chicago parking lot, a federal appellate court recently pummelled the National Labor Relations Board. Although to be clear, no one was...
Suppose an employee gets fired after complaining about sexual harassment at work. If that person later claims retaliation, they will have to establish a nexus between the two events, and the comp...
https://www.theemployerhandbook.com/some-complaints-of-sexual-harassment-arent-protected-at-all/
A recent federal appellate court decision is an important reminder to confirm early—not later—whether the employee suing your business signed an arbitration agreement. The plaintiff had signe...
I’m going to tell you about a transgender man who worked for three years as a sergeant for a state prison. While working at the prison, he began the process of medically and socially transition...
Imagine being an employer-defendant and reading that sentence as the lede in a court’s summary judgment opinion. Ouch! But that’s precisely what an Indiana federal judge wrote about a defenda...
In a recent Fourth Circuit decision, the plaintiff learned this lesson the hard way. The plaintiff, a lawyer who later earned a promotion to Town Manager, suffered from anxiety, depression, and h...
Employees who want to take leave under the Family and Medical Leave Act must give at least 30 days advance notice if possible and practical. If 30 days’ notice is not practicable, for example, ...
https://www.theemployerhandbook.com/lets-get-back-to-basics-fmla-notice-requirements/
The NCAA Men’s Basketball Tournament began yesterday. Last night, I read that the average worker will spend seven hours watching it, with 26 percent of Americans saying they’re prepared to sk...
https://www.theemployerhandbook.com/march-madness-is-checks-notes-not-a-serious-health-condition/
Yesterday, several House Democrats announced the introduction of the Protected Time Off (PTO) Act to guarantee all full-time workers access to at least ten paid days off from work each year. U...
“Miscarriages can be personally devastating. No one should have to choose between getting the pregnancy care they need and losing a job.” That quote comes from a senior U.S. Equal Employment ...
Earlier this year, I wrote about a white employee in Colorado who claimed his former employer subjected him to a hostile work environment by requiring him to attend anti-harassment training. Acc...
Employment lawyers and human resources professionals regularly preach that managers must document employee performance issues as a best practice so that if/when that manager wants to terminate th...
The same week that the U.S. Department of Labor’s rules on analyzing and determining who is an employee or independent contractor under the Fair Labor Standards Act (FLSA) took effect, both ho...
Suppose one of your employees, a widget maker, takes leave under the Family and Medical Leave Act. As a widget maker, the employee has a monthly quota of 100 widgets. The FMLA does not require an...
(At least I didn’t say, “It depends.”) Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against employees who oppose a practice that Title VII forbids, such as...
Famartin, CC BY-SA 4.0, via Wikimedia Commons I read a recent NJ federal court decision where a plaintiff began working for the defendant in New Jersey but later requested and received a transfer...
On Friday evening, a Texas federal judge blocked a proposed National Labor Relations Board rule that would have made it much easier for employees to unionize when he determined that enforcing the...
Spoiler alert: it often doesn’t end well for the plaintiff or their lawyer. For example, let’s discuss this Second Circuit decision in which a plaintiff had sued her employer and two of its e...
Let’s explore whether Title VII of the Civil Rights Act of 1964 protects employees against accusations of racism. The inspiration for today’s post comes from a recent Georgia federal court de...
https://www.theemployerhandbook.com/is-it-racist-to-falsely-accuse-someone-of-being-a-racist/
In 2022, Florida passed The Individual Freedom Act. But most people know this law as the “Stop W.O.K.E. Act,” which stands for “Stop the Wrongs to our Kids and Employees.” Whatever we cal...
https://www.theemployerhandbook.com/can-states-legally-ban-woke-training-in-the-workplace/
Right or wrong, an honest belief may be all it takes to proffer a nondiscriminatory reason for an adverse employment action. Do you remember that employer that terminated 65 employees seeking FML...
The U.S. Department of Labor rules on analyzing and determining who is an employee or independent contractor under the Fair Labor Standards Act (FLSA) take effect on March 11, 2024. Has your busi...
A multi-year dispute over unpaid wages went from bad to a whole lot worse for a Midwest business owner when he decided to appeal a trial court ruling that he owed over $300k in wages, damages, an...
It’s not like I woke up in a cold sweat, fixated on this obscure bit of Fair Labor Standards Act minutiae. But I did read this Eleventh Circuit decision last night, which did posit whether “J...
https://www.theemployerhandbook.com/was-mrs-doubtfire-swindled-out-of-overtime-pay/
Earlier this week, I wrote about a judge calling out an employee for trying to cast a personal choice to remain unvaccinated against COVID-19 as some deeply religious decision. Last night, I read...
Recently, I read a recent federal appellate court decision involving an employee with a rare form of Tourette Syndrome that caused him to use obscenities and racial slurs. While that could be di...
Photo by Brett Sayles: https://www.pexels.com/photo/slogan-black-lives-matter-on-black-board-4665903/ Last week, the National Labor Relations Board decided that a NON-union employer cannot requir...
I’ll bet nowhere on your HR job description is there anything about serving as the religion police. But during the pandemic, some companies were pretty persnickety when considering employee req...
Also, it is a bad idea to give that same employee a “retire-or-be-fired” ultimatum shortly after they return from bypass heart surgery. Am I making this stuff up? When have you known me to do...
In most places, a plaintiff who claims that their former employer sexually harassed them must establish that the conduct to which they were subjected was severe or pervasive enough to alter the c...
Historically, federal courts have determined that the Americans with Disabilities Act does not protect individuals with disabilities with valid medical marijuana prescriptions who lose their jobs...
Earlier in the week, I shared four ways to BOTCH a sexual harassment investigation. My “muse” was an Employee Relations Department that caught the attention of the EEOC for its alleged poor h...
https://www.theemployerhandbook.com/this-employee-relations-department-redeemed-itself-sort-of/
This sounds like something that might interest the U.S. Equal Employment Opportunity Commission. Oh, wait. Would you look at this EEOC press release? It seems her employer may have engaged in age...
Last month, I told you that an employer’s response to a harassment complaint doesn’t need to be perfect. Just ok may do. That’s because an employer that learns about sexual harassment needs...
https://www.theemployerhandbook.com/here-are-four-ways-to-botch-a-sexual-harassment-investigation/
Hopefully, your business never has to address a situation where an employee is suffering from progressive memory loss and cognitive decline. But, suppose one of your employees informs you that th...
There are all sorts of anti-retaliation laws that protect employees. Many require that employees who invoke them prove that the employer acted with retaliatory intent. But not all of them. Last w...
Before discussing the jury verdict, I’ll tell you a little about how we got here. Let’s go back to New Year’s Eve 2020 when the U.S. Equal Employment Opportunity Commission announced (here)...
“When are you going to retire?” “Why don’t you retire at 65?” “What is the reason you are not retiring?” A company manager at a manufacturing and distribution company allegedly aske...
https://www.theemployerhandbook.com/here-are-105000-reasons-not-to-force-an-older-worker-to-retire/
Last night, I read a NJ Appellate Division opinion about a plaintiff in his fifties who claimed his age motivated the defendant to end his employment. Spoiler alert: it didn’t. There were many ...
Federal agencies, like the U.S. Department of Justice, often publish news releases touting their lawsuits and significant judgments against employer scofflaws. But, I know a big one — a $1.2M j...
Last week, I wrote (here) about a white college professor who successfully alleged that his employer subjected him to a hostile work environment, at least, in part, because of particular training...
Wait a minute, Eric! Weren’t you just telling us that anti-harassment training is part of the backbone of a compliant workplace? I did. But, occasionally, employers can step over the line. I’...
Folks, I did not have EEOC Commissioner Andrea Lucas giving billionaire Mark Cuban a public antidiscrimination lesson on my Bingo board. But, as I was scrolling through X on Monday, here is what ...
As part of its current Strategic Plan, the U.S. Equal Employment Opportunity Commission aims to raise awareness of employment discrimination laws and ensure that individuals know their correspond...
Last night, I went shopping on Amazon for a new stool. At $48.90, this one came recommended as excellent value for money. And I almost bought it. But then the stool snob in me made me want to spl...
https://www.theemployerhandbook.com/next-time-just-give-her-the-damn-stool/
Notice anything potentially unlawful here? Yesterday, several of us spoke with The Philadelphia Inquirer about the problem with a local restaurant’s job ad discouraging trans men (and any women...
https://www.theemployerhandbook.com/help-wanted-male-bartender-must-be-biologically-male/
I won’t bury the lede, which I’ll quote from the Fourth Circuit decision I read last night. The requires reasonableness, not perfection. Reasonableness does not demand that an accommodation ...
A federal law called the Equal Pay Act requires that men and women in the same workplace receive equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Wh...
Remember that AT&T ad campaign a few years ago where the mobile network provider touted how cell phone users should not have to settle for mediocre phone service? “Just ok is not ok.” In the ...
Trust me. The title of this post will make sense in about a minute or two. Last year, a small sports bar and restaurant sought summary judgment to dismiss the age discrimination claims one of i...
https://www.theemployerhandbook.com/next-time-maybe-shell-just-get-that-tattoo/
Stop me if you’ve heard this one before. One of your employees has been with the company for several years. Over that span, they reported to the same manager, who consistently provided positive...
“Uh, Eric, don’t you mean the superior candidate?” You’d think I would, but I’m reading what the Seventh Circuit Court of Appeals wrote in this recent opinion. The plaintiff, a black wo...
It took less than a week for a group of freelance writers and editors to file this federal court lawsuit to block enforcement of the U.S. Department of Labor’s new independent contractor rules,...
Back in the day, the mere promise of Cheerios and chocolate milk was all it took to dupe my two oldest kids (then three and five) to shovel the driveway for a few hours. Come to think of it, I pr...
Last week, the U.S. Department of Labor finalized its rules on how to analyze and determine who is an employee or independent contractor under the Fair Labor Standards Act (FLSA), which I wrote...
The Fair Labor Standards Act can be a veritable legal liability minefield for the uninitiated. Just ask several of my friends who practice law on the plaintiff’s side. Heck, it can put an emplo...
Some people in Dallas do some dumb stuff. For example, every year, many locals hold out hope into late December or early January that the Cowboys will win the Super Bowl. After their hopes get da...
Yesterday, the U.S. Department of Labor finalized its rules on how to analyze and determine who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). In a nutshell, ...
Yesterday, the U.S. Equal Employment Commission’s newest General Counsel, Karla Gilbride, told reporters that addressing discrimination in American workplaces relating to the Israel-Hamas skirm...
About a year ago, a media organization fired one of its reporters after it found his ‘inflammatory’ Instagram posts (NSFW) showing clips of his off-the-clock standup comedy routines. Last wee...
Gosh, in all the excitement of switching and starting a new law firm, I totally forgot to post the poll results from “Is ‘Die Hard’ a Christmas movie?” 70.6% of you said yes. And the rest...
https://www.theemployerhandbook.com/eric-you-forgot-to-tell-us-if-die-hard-is-a-christmas-movie/
I’m not the biggest fan of progressive discipline policies, which can often be too restrictive. Plus, deviations and inconsistencies in their application are ammunition for a plaintiff claiming...
You’re not a doctor. (Unless you’re a doctor.) So don’t act like one when deciding which of your employees may be a direct threat to others at work. (Unless you like defending Americans wit...
Among the top employment issues that companies will need to navigate in 2024 is enforcing laws that have more recently taken effect. Take the PUMP for Nursing Mothers Act, for example. The PUMP A...
I am thrilled to share that I am one of the founding partners of a new, technology-driven, full-service law firm called Pierson Ferdinand, LLP. There’s an extensive article today about Pierson...
Today is my last day at FisherBroyles. Black Hawk Down; FisherBroyles Up But the story of FisherBroyles, my home (in every sense of the word) for the last six years, began long before I arrived i...
https://www.theemployerhandbook.com/a-love-letter-to-fisherbroyles/
“You keep reading; I’ll keep writing.” Nine times out of ten, that’s how I close my replies to readers of this blog who email me. I didn’t know that when I started writing this blog in ...
Since only the real ones are reading the blog this week, I must confess that it would be cool to patrol the office halls with a fake badge I ordered from Amazon to restore order and HR compliance...
For a minute there, I thought about blogging today about the Supreme Court employment law outlook for 2024. But that can wait. With Santa gearing up to make his special deliveries on Monday, we n...
https://www.theemployerhandbook.com/is-die-hard-a-christmas-movie/
Some jobs stink. But that doesn’t make the office a “hostile work environment.” For example, last night, I read about a manager whose employer transferred her to a unit facing a backlog of ...
I’m going to tell you about what may be the least self-aware employee. At least in recent memory. But first, we need to talk about sex stereotyping. Sex stereotyping is a form of discrimination...
Discrimination claims are not easy to prove. But, it doesn’t take much for a plaintiff to at least allege in her complaint that her former employer discriminated against her. Except when all yo...
The Americans with Disabilities Act requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. However, th...
A university professor did not have her employment contract renewed after two years on the job. Why not? She claimed it was in retaliation for previous internal complaints of discrimination. Acco...
Well, I don’t know if it’s the worst, but getting sentenced to 24 months in prison for a network intrusion and making false statements to a government agency sounds pretty bad. I was reading ...
I’ve been practicing law for over 20 years, and I must concede that I did not know this. Here’s how it works. Let’s say two companies bid for a public contract. One is minority-owned; the o...
https://www.theemployerhandbook.com/did-you-know-that-employers-can-sue-for-race-discrimination-too/
Federal anti-discrimination laws, such as the Americans with Disabilities Act and the Rehabilitation Act, help ensure that individuals with disabilities have the same rights and opportunities at ...
On Monday, three House Republicans and three House Democrats reintroduced the Protecting Older Workers Against Discrimination Act (POWADA), billed as a bipartisan proposal to strengthen anti-di...
If it walks like a duck, quacks like a duck, and swims like a duck, it’s probably a duck. Hold that thought while I tell you about someone who probably wouldn’t believe me. The plaintiff in t...
One of the largest jury verdicts in recent memory for a claim of employment discrimination was a $25.6 million award to a white manager who alleged that her former employer fired her because of h...
In June, the New York Senate approved this bill prohibiting noncompetition agreements and certain restrictive covenants. I wrote that the days of noncompetition agreements in New York “are as ...
https://www.theemployerhandbook.com/noncompetition-agreements-and-restrictive-covenants-in-new-york/
A few months ago, I blogged about a lawsuit in which the U.S. Equal Employment Opportunity Commission alleged that an employer denied a deaf job applicant’s accommodation request and terminated...
Wait, Eric! Didn’t you blog about this yesterday? Actually, yesterday’s post explored how you can tell if full-time work is essential to an employee’s job. But, to answer today’s question...
I’ll give you an example. Suppose one of your supervisors has worked full-time (at least 40-hour weeks) on the evening shift for many years. Then, they are diagnosed with a disability and take ...
“Eric, we have an employee who needed four weeks off for hip surgery. We provided it. After the surgery, they requested three more months off to have a second surgery. We provided it. Then, the...
I’m generally skeptical when I read about lawsuits that individuals accused of discrimination bring against their former employers. Last night, I read about a doctor who was terminated from his...
Federal laws, such as Title VII of the Civil Rights Act of 1964, apply to most U.S. businesses across the country to make it unlawful to discriminate and retaliate against employees. But when r...
Whether adorned with cornbread, sausage, or just the simple traditional version, readers of this blog can’t get enough of that Thanksgiving stuffing, which once again prevailed as the top overa...
I didn’t mean to startle some of you yesterday. In yesterday’s post, I teased that we would rank the Thanksgiving foods today. But in doing so, I linked to last year’s survey, which is clos...
https://www.theemployerhandbook.com/ok-now-lets-rank-the-top-thanksgiving-foods-for-2023/
Earlier this month, an employer learned the hard way that it could not rely on a contract provision to greenlight discrimination. For several years, a school district limited the annual earnings ...
https://www.theemployerhandbook.com/an-employer-cannot-rely-on-a-contract-to-discriminate/
Although the vast majority of businesses implemented a written COVID-19 policy at one time or another, many have eliminated or stopped updating those policies. That’s what I learned from a poll...