Employment Law Archives


With the seemingly daily news reports of sexual harassment scandals, business owners and investors are starting to realize an inconvenient fact: leaving the problem of workplace sexual harassment to the human resources department or middle-managers may no longer be adequate. Instead, owners and investors are beginning to recognize that they should - and must - use their enormous leverage over companies to demand accountability from the top down.

Intern or Employee? Second Circuit Court of Appeals Weighed 7 Considerations In Recent Ruling

A very recent federal case highlights the rules of the road when employers utilize interns. Wang v. Hearst Corp., No. 16-3302, (2d Cir. Dec. 8, 2017). The case was brought by a group of unpaid interns that participated in a for-credit internship program that Hearst operated at its various magazine offices. The interns alleged that they should have been paid minimum wage for the hours worked, pointing to the "menial and repetitive" nature of their tasks, Hearst's failure to provide close supervision or guidance, and the absence of much formal training. However, the Court of Appeals rejected the claim that the interns should have been paid for time spent at the employer's various work sites. In doing so, the court weighed the following seven considerations:


The answer to the question of whether morbid obesity is a disability continues to be: "sometimes." Because a Chicago Transit Authority bus driver who weighed over 500 pounds offered no evidence of any underlying physiological disorder or condition that caused his severe obesity, a federal district court in Illinois denied his motion for partial summary judgment on the issue of whether his obesity constituted a disability under the Americans with Disabilities Act ("ADA"). And because he did not allege a physical impairment within the meaning of the ADA, he failed to show that the transit authority regarded him as having a qualifying physical impairment. Richardson v. Chicago Transit Authority, C.A. No. 16-cv-3027 (N.D.Ill. November 13, 2017).


While the Trump Administration has effectively blocked the Obama Administration's plan to increase the salary standard for exempt status, its next moves are far from clear. In Nevada v. Dep't of Labor, C.A. No. 4:16-CV-731-ALM (E.D. Tex 2017 Aug. 31, 2017), the United States District Court for the Eastern District of Texas granted summary judgment against the Department of Labor ("DOL") in a claim challenging the Obama Administration's proposed changes to the salary basis test required for an employee to be exempt from the Fair Labor Standards Act ("FLSA") overtime requirement. The Obama Administration had proposed raising the minimum salary threshold for exempt status from $455 per week to $913 per week. The State of Nevada and twenty other states successfully challenged DOL's proposed changes and ultimately succeeded in blocking their implementation. On August 31, 2017, the District Court granted summary judgment and held that the DOL's proposed final rule regarding the salary basis test exceeded the DOL's authority, and was therefore invalid.

Password Sharing May Be A Crime

Amid the flurry of recent news about computer hacking and data breaches, a recent lawsuit quietly wound its way up to the steps of the United States Supreme Court. In that case, a former employee left his employer to open a competing business. After he left, he asked his assistant at his old firm to lend her login credentials to him so that he could access his former employer's database. He then used her password to log into his old firm's database. His former employer launched an investigation and reported him to the authorities.


A vexing problem for employers is the period of time it must allow for leave. A very recent decision from the United States Court of Appeals for the Seventh Circuit demonstrates that courts and administrative agencies continue to disagree regarding an employer's obligation to provide extended leave beyond that mandated by the Family Medical Leave Act (FMLA). Severson v. Heartland Woodcraft, No. 15-3754 (7th Cir. Sept. 20, 2017) (Sykes, J.).


A very recent decision in a federal district court case highlights the risk of off-the-clock wage claims. Andrews v. Weatherproofing Technologies, Inc., C.A. No. 15-11873-TSH (D. Mass Sept. 28, 2017) (Hillman, D.J.). In that case, a Massachusetts roofing contractor employed roofing technicians who inspected and repaired roofing systems that the employer installed for its customers. The technicians were typically in the field during the day and claimed that at night they would complete paperwork related to the day's work.


The Rhode Island Supreme Court recently awarded unemployment benefits to an employee who was fired for posting disparaging comments about his boss on Facebook. Although the worker was already on thin ice due to a host of issues, the employer ultimately fired him after his boss saw the Facebook post. The post was not defamatory or terribly inflammatory, but it was apparently the last straw leading to the employee's termination.

RI General Assembly Seeks to Restrict Employers in Their Hiring and Pay Practices

The Rhode Island General Assembly is poised to consider a new law that would prohibit prospective employers from asking candidates about their wage and salary history before making an offer of employment to them. The bill seeks to level the playing field between potential employees and employers so that employees would be free to negotiate and agree upon a wage or salary without their prior compensation setting an arbitrarily low basis for their new salary. On the flip side, however, the bill expressly permits potential employees to disclose their wage and salary history during negotiations. Therefore, if employees believe that their prior wage or salary will help them in negotiations, they are free to disclose that information to the prospective employer.

Notice of an Employee's Rights under FMLA Must Include Job Protection Rights

A recent decision by the U.S. Court of Appeals for the Fourth Circuit highlights the importance of proper notice to employees of their rights and responsibilities under the Family and Medical Leave Act (FMLA). (Vannoy v. Fed. Reserve Bank of Richmond, 4th Cir., No. 14-2375 (6/28/16)). In that case, the plaintiff, who suffered from major depression and alcohol dependency, sought medical leave from his employer under the FMLA to attend an in-patient treatment program. While the employer granted the leave, its notice to the plaintiff of his rights and responsibilities lacked a critical component: information concerning job protection rights.

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