Category Archives: Employment Law

Texas Federal Court Holds That Intrastate Truck Drivers Are Eligible for Overtime.

27 Monday Jan 2014

Posted by in Employment Law, Fair Labor Standards Act, Litigation, Trial Tips and Techniques

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Federal Court Finds Intrastate Truck Drivers Eligible For Overtime Pay, by Andrew Iwata, Lawyer Up Blog

http://tinyurl.com/mkem29j

In Butcher v. TSWS d/b/a Pot-O-Gold, (S.D. Tex. August 25, 2011), the Southern District of Texas denied an employer’s motion for summary judgment in a case involving FLSA overtime claims brought by truck drivers.  The employer argued that the plaintiffs were subject to the FLSA’s motor carrier exemption (which would mean that the drivers were not entitled to overtime pay) because the plaintiffs work affected the safety of interstate transportation.  Although the plaintiffs never crossed state lines in driving their trucks for the defendant, the company claimed that the employees could have been called upon to drive interstate at any time.  The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver ‘could have been called upon’ to drive interstate at any time.  The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver “could have been called upon” to drive interstate.

 

2014 Amendments to Oklahoma’s Workers’ Compensation Court Rules.

25 Saturday Jan 2014

Posted by in Court Rules, Oklahoma Supreme Court, Workers' Compensation

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In Re Court Rules Of The Workers’ Compensation Court, 2014 OK 2, Decided January 16, 2014, Corrected January 17, 2014, published by the Supreme Court of the State of Oklahoma.

http://tinyurl.com/l7anrkw

Please note that the 2014 amendments to Oklahoma’s Workers’ Compensation Court Rules are not effective until January 31, 2014. –CCE

The Court Rules of the Workers’ Compensation Court as amended and approved by that Court on December 20, 2013, having been submitted to this Court for its consideration, are hereby approved. The rules are for official publication and shall become effective on January 31, 2014. The rules as amended shall be published in the Oklahoma Bar Journal three times. By today’s adoption of these rules, submitted by the Workers’ Compensation Court, this Court neither indicates what meaning should be ascribed to them in any given application nor settles their validity against challenges that may be launched on constitutional or statutory grounds, federal or state.

March 2014 Deadline for Federal Contract Compliance Program’s Revised Rules.

20 Monday Jan 2014

Posted by in Affirmative Action, Disabilities, Employment Law, Federal Contract Compliance Program, Veterans

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2014 Model Documents For New OFCCP Regulations, by Mary Elizabeth “Molly” Kurt, Husch Blackwell LLP, Lexology

http://tinyurl.com/kanzksl

Ms. Kurt has attached forms in Word to her post. -CCE

The Office of Federal Contract Compliance Program’s revised rules for veterans and individuals with disabilities take effect March 24, 2014. In addition to goal-setting/benchmarking and increased attention to good faith efforts, the rules will require federal contractors to deploy a number of new or revised forms. The forms include applicant and new hire invitations to self-identify, mandatory elements of job posting communications with the state job service, and new elements of the EEO job advertisement tagline. Certain of these documents will be required beginning on March 24, 2014, and use of others can be delayed until the first date of your next affirmative action plan year.

 

Dave Roberts’ Last Article with Rex Travis – Oklahoma’s New Administrative Workers’ Compensation System.

14 Tuesday Jan 2014

Posted by in Employment Law, Workers' Compensation

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The New Administrative Workers’ Compensation System, by Dave Roberts, posted by Rex Travis, Travis Law Office

http://tinyurl.com/kx55ywl

Mr. Travis and his friend, David Roberts, were working on this article when Mr. Roberts passed away. The article appears after the excerpt of Mr. Roberts’ obituary, which is quoted here:

About the author: At the time of his death, Dave had tried over 100 civil cases in 21 various Oklahoma State District Courts. He also tried over 25 civil cases in various Federal District Courts, and tried thousands of cases at the Oklahoma Workers’ Compensation Court. Dave was past chairman of the Ethics Committee of the Oklahoma Bar Association and also served as Chairman of the Oklahoma Board of Bar Examiners. Dave authored several articles for the Oklahoma Bar Journal and the American Bar Association Journal. At the time of his death, he was one of only nine life-sustaining members of Scribes, the pre-eminent National Legal Writers’ Society. Excerpted from Dave Roberts’ obituary.

2014 Employment Law Predictions.

11 Saturday Jan 2014

Posted by in Affirmative Action, Bullying, Criminal History, Employment Law, Gender Discrimination, Health Care Benefits, Health Reform, Internships, Medical Marijuana, Minimum Wage, Pregnancy Discrimination

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Donna’s Employment Law Predictions for 2014, by Donna Ballman, Screw You Guys, I’m Going Home Blog

http://tinyurl.com/mqokell

Minimum wage, legalized marijuana, health care, internships, background checks, pregnancy discrimination, and more. -CCE

Employee Sentenced for Stealing Trade Secrets From Employer’s Computer.

11 Saturday Jan 2014

Posted by in Employment Law

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Former Employee Sentenced to Prison for Trade Secret Misappropriation and Computer Fraud Related Misconduct, by Jason Shinn, Michigan Employment Law Advisor

http://tinyurl.com/nsnxbcj

One of the more noteworthy employer/employee trade-secret misappropriation and Computer Fraud and Abuse Act  (CFAA) cases came to an end earlier this week. Specifically, Mr. David Nosal was sentenced on January 8, 2014 to one year and one day in prison. He was convicted for misappropriating his former employer’s trade secrets and improperly accessing the employer’s computer network.

Drug Regulation Expert Awarded Almost $4 Million As Whistleblower Under False Claims Act.

11 Saturday Jan 2014

Posted by in Employment Law, Health Law, Whistleblower

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Leawood Expert On Drug Regulation Wins $4 Million Whistleblower Award, by Greg Hack, The Kansas City Star

http://tinyurl.com/kcq88wa

CareFusion will pay $40.1 million in final settlement with the Department of Justice under the False Claims Act whistleblower law. Cynthia Kirk, an expert on drug regulation, will receive almost $4 million in reward as the whistleblower. -CCE

Arbitration – Some Like It and Some Don’t.

06 Monday Jan 2014

Posted by in Arbitration, Arbitration, Employment Law

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GLOBAL K: Contrasting Attitudes towards Arbitration Clauses, by Kprofs2013, ContractsProf Blog

 http://tinyurl.com/kpnbmhu

The recent discussion of the December 2013 decision by the Ninth Circuit in In re Wal-Mart Wage & Hour Employment Practices Litigation calls to mind the contrast in attitudes between international and domestic practice. Mention “arbitration” among international practitioners and profs, and you are likely to get a bit of a swoon from most – arbitration, properly structured, rescues us from the risks and uncertainties of unfamiliar legal systems and provides a comfort level in terms of predictability of process if not outcome. Mention “arbitration” in domestic circles, particularly with respect to consumer protection issues, and you encounter a growing skepticism if not outright hostility about the imposition of arbitration as an exclusive contract remedy.

Apple Workers In Poorest Countries Pay and Go Into Debt To Work on Consumer Electronics Assembly Lines.

22 Sunday Dec 2013

Posted by in Apple, Employment Law, iPad, iPhones, Legal Technology, Mac

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Apple Stickers OH MY!

 

What Obama’s Anti-‘Human Trafficking’ Order Means for Apple, by Cam Simpson and Adam Satariano, Politics & Policy, Bloomberg Businessweek

 

http://tinyurl.com/khcw46p

 

Friday is the deadline for corporate suppliers of the world’s biggest consumer—the U.S. government—to have a say in new regulations aimed at ending indentured servitude overseas. . . .  The President’s dictate is unequivocal on one key point: If a company wants to keep the government as a customer, it must stop hiring overseas workers who had to buy their jobs.

You read that right: Workers actually buy jobs. As Bloomberg Businessweek reported in November, foreign workers recruited from some of Asia’s poorest corners often go deep into debt to pay brokers for a crack at jobs on consumer-electronics assembly lines. These factories are in Malaysia and other countries that rely almost exclusively on migrant labor for production. For years Apple has ordered its suppliers to keep such fees below one-months’ net pay at a factory, but its audits last year turned up $6.4 million in overcharges.

 

 

 

New FLSA Regulations for Home Health Care Employees.

21 Saturday Dec 2013

Posted by in Elder Law, Employment Law, Fair Labor Standards Act, Home Health Care

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DOL Extends FLSA Protection to Home Care Aides, by okemployerlaw, Employers Legal Resource Center

http://tinyurl.com/kz5lp7k

Beginning January 1, 2015, new regulations under the Fair Labor Standards Act will require the home care industry to pay its employees minimum wage for hours worked up to 40 hours a week and overtime for a week over 40 hours. It will increase labor costs and could have an impact on the quality and availability of home health care. This except briefly outlines those changes.

Find more information by reading the entire post and FLSA’s Fact Sheet #25 at http://www.dol.gov/whd/regs/compliance/whdfs25.pdf.  -CCE

[U]nder the Fair Labor Standard Act, employers are required to pay employees minimum wage for hours worked up to 40 hours/week and time and half (overtime) for every hour worked over 40 hours/week. Two exemptions to this rule applicable to domestic services employment are the “companionship” exemption and the “live-in” exemption. The new rules narrowly interpret these exemptions thereby extending the FLSA protections to a host of in-home health care workers previously thought to be exempt, including certified nurse assistants (CNA), home health aides and personal care givers.

This Final Rule includes three (3) key changes that employers should be aware of. First, it narrowly defines the tasks that fall under the companionship exemption. Under the new rule, “companionship services” means providing fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance in caring for herself/himself. Fellowship and protection may include simply talking, playing games, accompanying the person to appointments or on walks, etc. The companion/employee also may directly provide “care” to the ill/elderly person (in addition to fellowship and protection) without losing the exemption, provided the “care” does not exceed 20% of the total hours worked by the employee in a given workweek. “Care” includes assisting with activities for daily living (dressing, grooming, feeding, bathing), and assisting with “instrumental activities of daily living” (meal preparation, driving, light housework, managing finances and physical taking of medications). If an employee spends greater than 20% of his or her time performing “care” in a given workweek, he or she is entitled to minimum wage and overtime. An employee performing medically-related services must be paid the minimum wage and is entitled to overtime.

Oklahoma Supreme Court Upholds Constitutionality of Controversial Workers’ Compensation Law

17 Tuesday Dec 2013

Posted by in Employment Law, Oklahoma Supreme Court, Workers' Compensation

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Oklahoma Supreme Court Upholds New Workers’ Compensation Law, by Randy Ellis, NewsOK

http://tinyurl.com/mg65yfj

 

Federal Whistleblower News Releases.

13 Friday Dec 2013

Posted by in Employment Law, Whistleblower

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United States Department of Labor – OSHA News Releases – Whistleblower

http://tinyurl.com/n7p7e62

Whistleblower News Releases and Case Outcomes, A to Z Index, Regulations, Enforcement, Statistics, FAQs, and more.  – CCE

March 24, 2014 Deadline for U.S. Dept. of Labor’s Final Rules Affecting Veterans and Persons With Disabilities.

10 Tuesday Dec 2013

Posted by in Affirmative Action, Disabilities, Employment Law

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OFCCP Issues Final Rules on Affirmative Action Obligations for Veterans and Persons with Disabilities, by Kimberly Korando, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. , JDSupra Law News

http://tinyurl.com/k97tbpf

The United States Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) has issued two final rules that will require significant changes to covered federal contractors’ and subcontractors’ (“contractors”) affirmative action programs for veterans and individuals with disabilities. One of the new rules makes changes to the regulations implementing the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) and the other relates to Section 503 of the Rehabilitation Act of 1973 (“Section 503”).

Contractors will be required to comply with the new rules effective March 24, 2014 with the exception of Subpart C regulations. The effective date for compliance with Subpart C regulations will vary depending on whether the contractor has an affirmative action plan in place on March 24, 2014. Contractors who do have such plans in place on March 24, 2014 will be permitted to delay compliance with Subpart C until the beginning of their first plan year after March 24, 2014.

No More Bullying At Work?

01 Sunday Dec 2013

Posted by in Bullying, Employment Law, Hostile Work Environment, Law Office Management

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Workplace Bullying Emerging As Major Employment Liability Battleground, by Sam Hananel, Insurance Journal Blog

http://tinyurl.com/aw84c23

On-the-job bullying can take many forms, from a supervisor’s verbal abuse and threats to cruel comments or relentless teasing by a co-worker. And it could become the next major battleground in employment law as a growing number of states consider legislation that would let workers sue for harassment that causes physical or emotional harm.

‘I believe this is the new claim that employers will deal with. This will replace sexual harassment,” said Sharon Parella, a management-side employment lawyer in New York. “[Y]ou can no longer go to work and act like a beast and get away with it.’

Are Judges Are Killing the Civil Rights Act of 1964?

27 Wednesday Nov 2013

Posted by in Affirmative Action, Courts, Employment Law, Judges, Race Discrimination, Research, Trial Tips and Techniques

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President Lyndon B. Johnson signs the 1964 Civ...

When it comes to employment cases, judges are killing the Civil Rights Act of 1964, by the Hon. Richard George Kopf, Hercules and the umpire Blog

http://tinyurl.com/phw85vu

After providing some background about rulings on employment cases, Judge Kopf reveals that:

[M]y summary judgment dismissal rate was higher than the aggregate rate for the Northern District of Georgia. That is, my dismissal rate was four points higher than the rate in the Northern District of Georgia (86% v. 82%). That caused me to write this: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

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 [V]ince Powers, my friendly nemesis, advised me about a powerful article that Nancy Gertner has written on this subject. Gertner now teaches law at Harvard, and was for many years one of the most distinguished federal trial judges in the nation. She is also a really great person with a warm and funny sense of humor. Here is Nancy’s article. I urge you to read what she has written. It will make you think hard.

If you have trouble accessing the link to the Nancy Gertner’s article, you can find it here: http://tinyurl.com/olfpxdz. CCE

Opponents Ask Oklahoma Supreme Court To Declare New Workers’ Compensation Law Unconstitutional.

26 Tuesday Nov 2013

Posted by in Oklahoma Supreme Court, Workers' Compensation

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Seal of Oklahoma.

Oklahoma workers’ comp law challenged, by Nolan Clay, The Oklahoman, NEWSOK

http://newsok.com/oklahoma-workers-comp-law-challenged/article/3884295

 In May 2013, Oklahoma’s Governor passed a new controversial workers’ compensation law, in spite of opponents’ arguments that the change will reduce an injured employee’s benefits. The bill passed by the Governor changed Oklahoma’s workers’ compensation judicial system to a “business friendly” administrative system. The new law, which goes into effect on February 1, 2013, allows a business to “opt out” if it provides an injured worker with benefits considered equal to what would have received under the administrative system. The Oklahoma Supreme Court is now being asked to declare the new law unconstitutional. CCE

Sexual Harrassment of Receptionist by Patient Costs Employer $30,000.

25 Monday Nov 2013

Posted by in EEOC, Employment Law, Harassment

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Third-party harassment costs employer $30,000, by Sharon B. Bauman, Alan M. King, Stanley W. Levy and Andrew L. Satenberg, Manatt Phelps & Phillips LLP

http://tinyurl.com/pen4et7

Why it matters: Employers, take note: harassment in the workplace can be committed not just by supervisors and coworkers, but by third parties such as customers, patients, clients, delivery people, or repair workers. The settlement in the Ross case (EEOC v. Southwest Virginia Community Health System) should remind employers that regardless of the source, sexual harassment cannot be tolerated in the workplace – or liability may result.

“Must Read” for HR – Evidence of Hiring Discrimination Using Social Media.

24 Sunday Nov 2013

Posted by in Affirmative Action, EEOC, Employment Law, Gender Discrimination, Race Discrimination

≈ 1 Comment

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Everyone knows by now that human resources professionals and employers use social media to screen potential employees. Studies now show that some employers illegally discriminate against applicants based on what they find. CCE 

Study Finds Evidence of Unlawful Discrimination in Using Social Media to Recruit Employees, posted by Jason Shinn, Michigan Employment Law Advisor

http://tinyurl.com/k63s24l

A recent article in the Wall Street Journal (reported on 11/21/2013 by Jennifer DeVries) discussed a study showing bias in the hiring process when social media is used to screen job applicants. Because of the potential for unlawful discrimination and losing out on otherwise qualified job applicants, the article and study should be a “must read” for every human resource professional or anyone with hiring responsibilities.

Senate Approves Anti-Retaliation Bill Protecting Anti-Trust Law Whistleblowers.

13 Wednesday Nov 2013

Posted by in Anti-Retaliation, Consumer Law, Whistleblower

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Senate approves antitrust anti-retaliation bill, by Paul H. Saint-Antoine, Ronald A. Sarachan, and Todd N. Hutchison, Drinker Biddle & Reath, PC

http://bit.ly/1aoxTiR

OSHA First Impression Ruling on “Entreprise-Wide” Abatement Theory of Liability

05 Tuesday Nov 2013

Posted by in Employment Law, Trial Tips and Techniques, Workers' Compensation

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Judge Rejects OSHA’s “Enterprise-Wide” Relief Theory, by Stephen Yohay, EHS OutLoud Blog

http://www.perma.cc/0SeaMZWf1hp

In what apparently is a case of first impression, an administrative law judge (ALJ) of the federal Occupational Safety and Health Review Commission (OSHRC) recently decided that the Occupational Safety and Health Act (OSH Act) does not authorize OSHRC to order so-called “enterprise-wide” abatement. Under that theory of liability, the Occupational Safety and Health Administration (OSHA) maintains that when a violation is proven at an employer’s worksite, OSHRC has the statutory authority to require that employer to abate the same or similar hazards at its other worksites that were not the subject of the litigated citation.

“Supervisor” Defined by U.S. Supreme Court

04 Monday Nov 2013

Posted by in Employment Law, Harassment, Race Discrimination, Trial Tips and Techniques, United States Supreme Court

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Supreme Court refines Title VII standards, by Kevin B. Leblang and Robert N. Holtzman, Kramer Levin Naftalis & Frankel LLP

http://bit.ly/1a45PkL

On June 24 2013 the US Supreme Court handed down opinions in two cases refining the standards applicable to claims under Title VII of the Civil Rights Act of 1964. First, the court ruled that only employees with the authority to hire, fire or promote the alleged victim will be considered supervisors for purposes of Title VII harassment suits. Second, the Supreme Court applied a strict and employer-friendly causation standard to Title VII retaliation claims.

EEOC Loses Claim of Unlawful Discrimination Against Employer

24 Thursday Oct 2013

Posted by in Class Actions, Criminal History, EEOC, Employment Law, Race Discrimination

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 EEOC Smacked Down in Rare Employer Win in Defending Claim of Unlawful Discrimination, by Jason Shinn, Michigan Employment Law Advisor
http://bit.ly/17hzWaK

Oral Argument of Schuette v. Coalition to Defend Affirmative Action

16 Wednesday Oct 2013

Posted by in Affirmative Action, Employment Law, Oral Argument

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Argument recap: Figuring out Kennedy – Again, posted by Lyle Denniston, SCOTUSblog
http://bit.ly/1bUHO3q