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McBrayer Blogs

Showing 59 posts from 2015.

The Cost of Buying Silence – Non-disclosure Provisions Run Afoul of Federal Agencies

May 4, 2015
Posted In Uncategorized

There’s an inherent tension in requiring an employee to sign an agreement restricting his or her ability to discuss activity in the workplace. On one hand, employers with confidential business practices and trade secrets need to maintain those investments in intellectual capital both during and after employment. On the other, these agreements can stifle both the rights of employees to seek redress of workplace grievances as well as restrict the ability of regulatory agencies to investigate and correct employer practices or violations of the law. The tenor of recent enforcement actions by various agencies as to strict non-disclosure agreements (“NDAs”) and non-disclosure provisions in separation agreements should give employers cause to re-evaluate their own attempts to limit liability. More >

The Big and Small Implications in Perez v. Mortgage Bankers Association

April 29, 2015
Posted In Department of Labor ("DOL"), Fair Labor Standards Act (FLSA), U.S. Department of Labor

There are two important takeaways from Perez v. Mortgage Bankers Association,[1] one with a broad scope and the other much narrower. The broader ruling exempts agency interpretations of laws and regulations from any notice and comment requirements under the Administrative Procedures Act (“APA”), allowing agencies to substantially alter interpretations without notice. On a different note, however, is the finding that Department of Labor (“DoL”) Fair Labor Standards Act (“FLSA”) classification interpretations are subject to change at any moment. More >

Employers – Are You Prepared for New NLRB Election Rules?

April 27, 2015
Posted In National Labor Relations Act (NLRA), National Labor Relations Board (NLRB), Union

On April 14th, the new National Labor Relations Board (“NLRB”) election rules came into effect, creating a potential headache for employers. Perhaps most critically, the timeline between the initial petition for union election and the election itself may be as short as 13 days, giving employers limited notice of potential union organization and activity. These accelerated elections are derisively (but maybe not unjustly) referred to as “ambush” or “quickie” elections. More >

ADA “Direct Threat” Defense Just Got a Little Easier

April 22, 2015
Posted In ADA Amendments Act of 2008 (“ADAAA”), Adverse Employment Action, Americans with Disabilities Act, EEOC, U.S. Equal Employment Opportunity Commission (“EEOC”)

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still be able to perform essential job functions with an accommodation. Additionally, the employee’s disability cannot pose a risk to her- or himself or others in the course of job functions if that risk cannot be eliminated or reduced by a reasonable accommodation. This is known as the “direct threat” defense – adverse employment or hiring actions taken against an employee or applicant were done so to mitigate a direct threat to the safety of the employee or others. More >

Vetting Employees via Social Media – Walking the Digital Tightrope

April 20, 2015
Posted In EEOC, Social Media, Social Media Policies, U.S. Equal Employment Opportunity Commission (“EEOC”)

As Comedy Central is discovering with the new host of The Daily Show, Trevor Noah, failure to fully vet an employee’s social media activity can have unexpected consequences. At the same time, an employee’s social media profiles can yield information that may be harmful to employers in the hiring process. There are potential pitfalls to examining an applicant’s social media profiles both too closely and not closely enough, and the lines are difficult to discern. More >

EEOC Consent Decrees are its Most Powerful Enforcement Mechanisms

April 15, 2015
Posted In EEOC, U.S. Equal Employment Opportunity Commission (“EEOC”)

The vast majority of settlements between an employer and the Equal Employment Opportunity Commission (“EEOC”) take the form of a court-approved consent decree. This document is a public record designed to highlight and account for certain wrongs in a way that sidesteps an admission of guilt in favor of the implementation of remedial measures to prevent further unlawful practices. A consent decree includes certain action and reporting mandates that employers must follow, providing the EEOC with the most powerful enforcement tool in its arsenal. More >

Pregnancy Discrimination Claims after Young v. UPS

April 13, 2015
Posted In Adverse Employment Action, Pregnancy Discrimination Act, Title VII of the 1964 Civil Rights Act, Young v. UPS

It was a difficult delivery, but the Supreme Court in Young v. UPS[1] gave birth to a new test in determining whether an employer has violated the Pregnancy Discrimination Act (“PDA”)[2]. More >

Sexual Harassment Mistakes Employers Make

By Cynthia L. Effinger on April 9, 2015
Posted In EEOC, Employee Misconduct, Title VII of the 1964 Civil Rights Act

Sexual harassment claims can quickly become a nightmare for employers, but so many aspects of the nightmare are caused in part by the employer’s own actions. The employer has opportunities to mitigate the damage in two key areas – the sexual harassment policy itself before the alleged harassment incident and the investigation that takes place afterword. This post will look at mistakes made in these two particular areas that can hurt employers and lead to potentially costly damages. More >

Is it Time to Review Your Employee Handbooks?

By Cynthia L. Effinger on April 8, 2015
Posted In Employee Handbook, National Labor Relations Act (NLRA), National Labor Relations Board (NLRB)

On March 18th, National Labor Relations Board (“NLRB”) General Counsel Richard F. Griffin, Jr., issued a report[1] (“the Report”) concerning employer rules and employee handbooks in light of recent employer rule cases. Most of the violations found in these cases occurred under the first prong of the two-prong the test in Lutheran Heritage Village-Livonia,[2] which looks to whether an employer rule explicitly restricts protected activity under Section 7 of the National Labor Relations Act (“NLRA”). The Report used these cases as a guide to provide clear examples of both illegal rules and their legal counterparts, giving employers a valuable tool in evaluating employee handbooks and workplace rules.Employee Handbook Manual Rules Regulations Code of Worker Conduc More >

Employers – Don’t Be a Victim of Suspicious Timing

April 1, 2015
Posted In EEOC, Title VII of the 1964 Civil Rights Act

Where there’s smoke, there may be fire – at least, that appears to be a key takeaway from the Seventh Circuit case of Ledbetter v. Good Samaritan Ministries. The holding in this case is predicated on the notion that suspicious timing in an adverse employment action can give rise to a claim of retaliation under Title VII in absence of other solid evidence. More >

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