News & Analysis

9th Circuit rejects DOL's interpretation of 'tip-credit' reg

The Fair Labor Standards Act (FLSA), the federal law that imposes minimum wage and overtime compensation requirements, permits employers to take a credit for minimum wage purposes for a portion of the tips received by employees who are engaged in an occupation in which they "customarily and regularly receive" tips totaling more than $30 a month.

NLRB didn't have to use new standard for deferring to arbitration awards

What happens when a union-represented employee claims she was discharged because of her protected activities (such as being a zealous shop steward) and the company contends she was discharged for safety infractions and insubordination? What happens if the dispute is resolved in the company's favor by an arbitration award under the parties' collective bargaining agreement but the employee also files an unfair labor practice (ULP) charge with the National Labor Relations Board (NLRB)? Should the NLRB decide the case on the merits or "defer" to the arbitration decision and dismiss the charge?

More employers can claim contraception exemption under new rules

The Department of Health and Human Services (HHS) announced recently that it was expanding the circumstances in which an employer can offer a group health plan that doesn't cover contraception. The action was taken in response to an Executive Order from President Donald Trump asking the agency to amend the contraception coverage regulations to promote religious liberty. New exemptions allow a wider range of employers to opt out of providing coverage for some or all types of contraception if they can demonstrate a religious or moral objection to doing so.

Bah hug-bum! Be alert for sexual harassment at the holiday party

Every December we are asked about the do's and don'ts of holiday parties. You've read our general responses in articles like "6 tips for minimizing holiday party liability" (on pg. 1 of our December 7, 2015, issue). But the close of 2017 arrives with some special cautions. The whole world is watching the drama of workplace harassment, and the office holiday party might be the Super Bowl ― often boring, but the one event in which almost everybody takes part. So here are some special points to keep in mind this year.

Forget sticks and stones—a single word can hurt employers

The U.S 3rd Circuit Court of Appeals (whose rulings apply to all Delaware employers) reversed a lower court's dismissal of a hostile work environment lawsuit based on the single use of a racial slur by a supervisor. In doing so, the appeals court clarified the standard for determining what makes a work environment hostile.

Telemarketers catch a break

To take a break to go to the bathroom, or not to take a break to go to the bathroom—under the Fair Labor Standards Act (FLSA), that isn't a question your workforce should be asking, particularly if the answer affects their compensable time. As a telemarketing firm discovered the hard way, the U.S. Department of Labor (DOL)—which enforces the FLSA—takes the question of breaks seriously.

Hollywood scandals generate new interest in workplace harassment

The past couple of months have been a little crazy. It seems like every day, we hear a new salacious story about inappropriate sexual behavior committed by various movers and shakers in La La Land and beyond.

More employers can claim contraception exemption under new rules

The Department of Health and Human Services (HHS) announced recently that it was expanding the circumstances in which an employer can offer a group health plan that doesn't cover contraception. The action was taken in response to an Executive Order from President Donald Trump asking the agency to amend the contraception coverage regulations to promote religious liberty. New exemptions allow a wider range of employers to opt out of providing coverage for some or all types of contraception if they can demonstrate a religious or moral objection to doing so.

When is an employment action significant enough to be adverse?

A recent 3rd Circuit decision raises questions about when an employment action is significant enough to constitute an adverse action within the scope of state and federal discrimination laws.

Agency Action

EEOC launches respectful workplace training program. The Equal Employment Opportunity Commission (EEOC) announced in early October 2017 two new training programs for employers: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees). The training programs focus on respect, acceptable workplace conduct, and the types of behavior that contribute to a respectful and inclusive workplace. The programs are customizable for different types of workplaces and include a section for reviewing employers own harassment prevention policies and procedures. The training program is an outgrowth of the Report of the Co-Chairs of the EEOCs Select Task Force on the Study of Harassment in the Workplace. We always said the report was just a first step, said EEOC member Victoria Lipnic, who is a coauthor of the report. Implementation of the reports recommendations is key. These trainings incorporate the reports recommendations on compliance, workplace civility, and bystander intervention training.