Important News

March, 2014

The willingness of Florida’s PEOs to seek and accept “yoga-esque” legislative endeavors and results has significantly contributed to Florida’s PEO growth.  Unfortunately, this type of flexible legislative approach that allows a PEO to make an individual determination as to the direction, control, and authority that it intends to exercise with regard to worksite employees has led to some confusion regarding PEO responsibilities and liabilities.

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February, 2014

In a fascinating situation that has recently arisen, the National College Players Association filed a petition with the National Labor Relations Board (NLRB) on behalf of football players at Northwestern University, which for the first time could give the student athletes the right to organize, bargain and be compensated for their work.

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In April of last year, the Colorado Court of Appeals determined that state-licensed medical marijuana use is not a “lawful activity” under Colorado’s Lawful Activities Statute and accordingly, employers in Colorado are not prohibited from discharging employees for off-the-job use of medical marijuana.

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Recently, a federal district court in Illinois ruled against an in-home health care company in a gender and pregnancy discrimination case brought under Title VII of the Civil Rights Act and ordered that a jury must decide whether discriminatory conduct had occurred.

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January, 2014

In a November 2013 press release, the Equal Employment Opportunity Commission (EEOC) announced that a major delivery service company will pay $70,000 in damages and furnish other significant relief to settle a religious accommodation lawsuit filed by the Commission.

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Recently, the Equal Employment Opportunity Commission (EEOC) announced that a community health system agreed to pay $30,000 to settle a sexual harassment lawsuit filed by the Commission alleging that a female receptionist at one of the company's clinics was sexually harassed by a male patient during the course of her employment.

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Recently, an administrative law judge ("ALJ") found that a technical school's "No Gossip Policy" violated the National Labor Relations Act ("Act"). The school's "No Gossip Policy" prohibited employees from participating in or instigating gossip about the company, other employees, and customers.

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In a December 2013 Press Release, the Equal Employment Opportunity Commission (EEOC) announced that a Hawaiian resort retailer will pay $60,000 for discriminating against an employee because of her fertility treatments and subsequent pregnancy.

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The Equal Employment Opportunity Commission recently issued a press release to highlight its Performance Report for Fiscal Year 2013.  In the wake of significant operational challenges in FY 2013, such as, the furlough of its workforce, a hiring freeze, and budget reductions in key areas, including but not limited to litigation, the Commission still obtained a record $372.1 million in monetary relief as well as non-monetary relief for more than 70,522 purported victims of private sector workplace discrimination.

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October, 2013

Recently, the Pew Research Center reported that 72% of online adults use social networking sites. While the National Labor Relations Board (NLRB) has been very expansive of employee rights to be critical of management, generally there is no privilege or right of privacy attached to social media content.

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Recently, the U.S. Court of Appeals for the Sixth Circuit approved a National Labor Relations Board's finding that a bargaining unit in a nursing home, which was comprised of only Certified Nursing Assistants (CNAs), constituted an appropriate unit.

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A district court in Alabama recently decided a case in which the plaintiff, a nurse with a history of drug addiction, alleged that the hospital where she had worked terminated her employment in violation of the Family and Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA).

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In a recent Maryland case, the National Labor Relations Board determined that an ambulance service company violated Section 8 of National Labor Relations Act ("Act") by firing an employee because of his Facebook posts.

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August, 2013

Court Addresses the Status of "Unpaid Interns." Recently, a New York federal court issued a ruling that impacts the classification of unpaid interns working at for-profit businesses.  The ruling may put a question mark on the issue of whether interns can remain uncompensated, but it also protects the status of such internships if certain guidelines are met.

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U.S. Supreme Court Defines "Supervisor" in Hostile Work Environment Cases. The U.S. Supreme Court recently held that a worker is a "supervisor" for purposes of imposing vicarious liability on an employer for hostile environment cases under Title VII of the Civil Rights Act only if that worker is able to take tangible employment actions, such as disciplining and firing, against the alleged victim.

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June, 2013

Misconduct "Caused By" A Disability Can Constitute Grounds For Termination. Can employers terminate an employee for misconduct that is caused by a disability? A Florida district court recently answered that question in the affirmative due to the circumstances of the case.

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EEOC Focuses on Employer Wellness Programs.On May 8, 2013, the EEOC issued a Press Release addressing the impact of discrimination and other laws on wellness programs.  Many employers have adopted wellness programs to reduce insurance costs, and to encourage employees to take preventative measures and modify harmful behavior.

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May, 2013

PEOs Must Learn to Navigate
THE CHALLENGING WORKPLACE WATERS CHURNED BY THE NLRB

Read the full article here

October, 2012

EEOC Releases Aggressive Strategic Enforcement Plan Focused on Hiring and Recruitment. On September 4, 2012, the Equal Employment Opportunity Commission ("EEOC") released its Draft Strategic Enforcement Plan ("SEP"), which is part of its broader Strategic Plan for Fiscal Years 2012-2016.

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Beware of Drug Testing For Prescription Medications. In late September 2012, a Michigan company entered into a $750,000 settlement with the EEOC to settle a lawsuit under the Americans with Disabilities Act (ADA).

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September, 2012

Eleventh Circuit Rules on Wellness Program Under the ADA.  Employers have been trying to lower employee healthcare costs in a number of ways in recent years. 

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August, 2012

Mere Suggestion Can Violate NLRA. A recent ruling from the National Labor Relations Board ("NLRB") accentuates the agency's ever-expanding interpretation of employees' Section 7 rights. Section 7 of the National Labor Relations Act protects employees' rights to engage in "concerted activities," which includes discussions amongst co-workers regarding the terms and conditions of employment.

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June, 2012

NLRB Update on Social Media Policies. On May 30, 2012, the National Labor Relations Board's (NLRB) Acting General Counsel issued Memorandum OM 12-59 ("Memorandum"), which analyzes seven recent social media cases for purposes of providing guidance on whether social media policies are compliant with the National Labor Relations Act (NLRA).

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April, 2012

EEOC's Final Rule on Age Discrimination Defense. The Equal Employment Opportunity Commission ("EEOC") has issued a final rule addressing a key defense available to employers facing "disparate impact" claims by employees under the Age Discrimination in Employment Act ("ADEA").

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March, 2012

Latest Update on NLRB's Notice Posting Rule. Last month, I wrote that the effective date of the recently-adopted rule requiring employers to post a notice to employees advising them of their rights under the National Labor Relations Act ("NLRA") had been postponed until April 30, 2012, so that legal challenges to the rule could be addressed.

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Proposed FMLA Rules for Military Caregivers.The U.S. Department of Labor (DOL) has published its proposed rules for implementing the amendments to the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for Fiscal Year 2010.

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February, 2012

Workers Not Eligible For FMLA Still Protected. A federal court recently held that the Family and Medical Leave Act ("FMLA") protects an employee's pre-eligibility request for post-eligibility leave, reversing the lower court's dismissal of a pregnant employee's FMLA interference and retaliation claims.

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Yet Another NLRB Notice Posting Update. As I have notified you in past articles, the National Labor Relations Board ("NLRB") has mandated that employers post an oversized "Notice of Employee Rights" poster in a conspicuous area in the workplace.

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January, 2012

NLRB Appointments Prompt Controversy. President Obama has recently announced three recess appointments to the National Labor Relations Board ("Board"), despite the requests of Republican Senators to refrain from doing so.

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New Veterans employment law offers tax credits to employers. Recently, Congress passed the VOW to Hire Heroes Act of 2011, a bill intended to help unemployed veterans find employment.

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Failure to maintain certification due to depression not covered by ADA. According to a U.S. Appeals Court, a teacher who failed to maintain her teaching certificate due to her depression was not a "qualified individual with a disability" under the Americans with Disabilities Act (prior to its amendment).

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November, 2011

Quickie Election Resolution Adopted. On November 30, the National Labor Relations Board ("NLRB") held a meeting and took a vote on a slightly watered-down version of the controversial "Quickie Election" resolution proposed earlier this year.

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Latest Update on NLRB's Notice Posting Rule. Last month, I wrote that the effective date of the recently-adopted rule requiring employers to post a notice to employees advising them of their rights under the National Labor Relations Act had been postponed until January 31, 2012.

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Individual Liability for Wage and Hour Claims. In a recent federal case, a court found that a company's Chief Executive Officer ("CEO") was personally liable, along with the corporation, for payments to employees under a wage and hour settlement.

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Court Finds Employer Liable for Retaliation, but Limits Damages. After a bench trial, a district court recently found that an employee's former employer retaliated against him by notifying the discharged employee's subsequent employers that he had filed an EEOC charge against it.

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EPLI Coverage for Cases Initiated by the EEOC. Recently, a federal district court ruled that an employer's employment practices liability insurance ("EPLI") did not provide any type of coverage for an action brought by the Equal Employment Opportunity Commission ("EEOC").

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October, 2011

Eleventh Circuit Finds Former Employee's Job Duties Were Replaced By Computer Program. The Eleventh Circuit Court of Appeals recently affirmed the dismissal of a lawsuit under the Age Discrimination in Employment Act ("ADEA") because the older worker's job duties were not assumed by a younger worker, but rather by a computer program.

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NLRB Posting Rule Postponed. The National Labor Relations Board ("NLRB") recently announced that it has postponed the effective date of its new rule mandating a workplace posting of an official Notice of Employee Rights under the National Labor Relations Act.

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September, 2011

Ensuring Compliance with I-9 Regulations. Employers face tough challenges when trying to comply with the prohibitions on employing unauthorized workers, while at the same time ensuring they do not discriminate against employees during the I-9 process by engaging in document abuse.

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Jury awards 8.1 million dollars in FMLA/ADA lawsuit. On September 1, a federal jury in South Florida found that a company had violated the Family and Medical Leave Act (FMLA) and Americans With Disabilities Act (ADA) after firing an employee undergoing chemotherapy.

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Employee of Staffing Agency Unable to Pursue Discrimination Claim Against Client Company. A district court ruled that an employee hired by a staffing agency was unable to pursue a religious discrimination claim against the medical facility where she was assigned to work.

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August, 2011

While organized labor failed in its attempt to pass the Employee Free Choice Act in Congress, the NLRB is attempting to implement much of organized labor's wishes through rule-making by proposing new regulations that would eliminate important protections and speed up the election process.

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July, 2011

The Equal Employment Opportunity Commission ("EEOC") recently provided further advice to employers when investigating an applicant's criminal background.

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June, 2011

The National Labor Relations Board's (NLRB) continues to scrutinize and challenge the social media policies of both union and non-union employers.

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May, 2011

On June 1, 2011, the Florida minimum wage will increase to $7.31 per hour.

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April, 2011

The Equal Employment Opportunity Commission ("EEOC") has released the long-awaited regulations addressing the ADA Amendments Act (ADAAA).

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March, 2011

On March 1, the U.S. Supreme Court held that employers may be liable for the biased motives of supervisors who influence, but do not decide, employment actions.

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February, 2011

Currently, there are three bills (a House Bill, a Senate Bill, and the Governor's Bill) pending that could have significant impact on unemployment compensation awards.

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January, 2011

The Office of Federal Contracts Compliance (OFCCP) has sought to impose affirmative action obligations on hospitals for years.

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