It is no secret: Cash-strapped federal and state governments have been stepping up enforcement and increasing penalties against businesses that misclassify employees as independent contractors and exposing these businesses to additional employment-related liabilities for wage and overtime pay, health, welfare and retirement benefits, and income and employment tax contributions and withholding. We have been watching… Continue Reading
Monthly Archives: May 2010
Kozinski – Offensive Workplace Speech Protected By First Amendment
Posted in Constitution, HarassmentThe tension between the First Amendment and the right to be free of workplace harassment on the basis of protected status has been addressed by the Ninth Circuit in Rodriguez v. Maricopa Co. Comm. Coll., a case in which employees complained that a professor’s race-based emails created a hostile work environment. Judge Kozinski, with Justice… Continue Reading
DOL Introduces New Legislation Designed to Combat Unemployment Fraud
Posted in LegislationEmployers may soon face new requirements in the Department of Labor’s efforts to reform the unemployment insurance program. On Monday, the Department announced that it had introduced legislation designed to combat fraud and reduce the overpayment of unemployment insurance benefits. According to Secretary of Labor Hilda L. Solis, more than $11.4 billion in unemployment benefits… Continue Reading
No Faragher/Ellerth Defense for New York City Employers
Posted in HarassmentNew York City employers may not use the Faragher/Ellerth defense to harassment claims lodged under New York City’s Human Rights Law. That’s the verdict of New York’s Court of Appeals. (Zakrzewska v. New School. 2010 NY LEXIS 632 [May 6, 2010]). Instead, New York City employers will be strictly liable for harassment by supervisory or… Continue Reading
DOL Scraps Opinion Letters in Favor of Administrator Interpretations
Posted in Wage & HourAfter many years of issuing and publishing “opinion letters” interpreting the Fair Labor Standards Act, the Wage and Hour Division of the Department of Labor announced in March that it has stopped this practice, and will instead begin issuing “Administrator Interpretations.” Rather than responding to specific questions raised by employers — as it did in the old… Continue Reading
Perverse Workplace Consequences Of New GINA Rules
Posted in DiscriminationThe EEOC has submitted for final publication its regulations interpreting the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from acquiring or using employees’ genetic information. Should employers, the vast majority of whom have never even considered employees’ genetic information, care? Yes. Assume, during a casual conversation with an employee, a supervisor asks “How are you?”… Continue Reading
Discipline of Employees Who Have Engaged in Protected Activity
Posted in Discrimination, WhistleblowerLots of laws prohibit an employer from firing or taking some other adverse action against an employee based on the employee’s protected conduct, status, or activity. But what happens when you discover an employee’s misconduct only because he or she engaged in protected activity? The U.S. Court of Appeals for the Eleventh Circuit recently answered… Continue Reading
U.S. v. Stevens & Hostile Work Environment Law
Posted in Constitution, HarassmentRecently, SCOTUS overturned a federal law banning depictions of animal cruelty because it violated the First Amendment as an impermissibly broad, content-based restriction on speech. (U.S. v. Stevens) What possible connection could this case have to employment law you ask? Title VII — to the extent it imposes liability on employers for creating or permitting… Continue Reading
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