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Cynthia L. Effinger
Showing 66 posts by Cynthia L. Effinger.
Employers, Don’t Sleep on Your Rights
There are ways of gaining a tactical advantage in Fair Labor Standards Act (“FLSA”) litigation, but sleeping on one’s rights in such a circumstance is not one of them. NPC International, Inc., a Pizza Hut franchisee, learned this the hard way in the Sixth Circuit in August. If the case of Skylar Gunn v. NPC International proves anything, it proves that courts will frown upon employers gaming the legal system to the detriment of employees bringing claims. More >
Surprise! That Independent Contractor is an Employee!
The Department of Labor (“DOL”) has given employers some bitter pills to swallow lately, especially in light of the proposed rule concerning new restrictions on the white collar overtime exemption. With a new set of guidance on the classification of independent contractors, the streak of DOL heartburn for employers continues unabated. More >
FLSA Wage Increase
President Obama announced this week a proposed rule change to the Fair Labor Standards Act (“FLSA”) that will affect every business. The proposed rule change will increase the minimum required salary for employees to qualify as exempt under the FLSA from $455 a week to $970 a week. Accordingly, this rule will require employers to pay overtime to those employees More >
Morbid Obesity is Not a Disability in Kentucky – For Now
There’s no question that obesity is a national health crisis, with the Centers for Disease Control and Prevention estimating that more than a third of adults in the U.S. are obese. In 2013, the American Medical Association pronounced that it now finds obesity to be a disease, adding more fuel to the fire that suggests individuals afflicted with this disease could be considered “disabled” under the Americans with Disabilities Act (“ADA”). With regard to state law, however, the Kentucky Supreme Court closed the door – at least, for the time being - on disability claims with regard to obesity in the case of Pennington v. Wagner’s Pharmacy, Inc.[1] More >
Sexual Harassment Mistakes Employers Make
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?
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.
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Hair Trigger: When are Employee Notice Provisions Triggered under the FMLA?
It can be hard to know when an employee is invoking rights under the Family and Medical Leave Act (“FMLA”). Every employer wants FMLA-requested leave to come in the form of 30 days advance notice, filed in the appropriate manner pursuant to company policy. However, a triggering event for FMLA leave can come from something as simple as an employee asking for a day off for medical reasons. It’s important to understand what the FMLA requires of employers in that instance to fulfill their responsibilities. More >
What Employers Can (Probably) Expect from the FLSA Overtime Exemption (Yet to Be) Proposed Rules
With apologies to Tom Petty, with regard to upcoming proposed regulations under the Fair Labor Standards Act set to increase the overtime exemption salary, the waiting is the hardest part. Employers everywhere will likely experience some budgetary change to comply, but it’s hard to know exactly what that change will be. At the same time, knowing what may be coming down the pike can only prepare employers more for how to handle the final regulations when they come into effect. More >
Kentucky Supreme Court Decision Drastically Impacts All Non-Compete Agreements
Earlier this year, the Kentucky Supreme Court reversed the Kentucky Court of Appeals’ holding in Creech, Inc. v. Brown, and held, in a landmark decision, that continued employment, standing alone, is no longer sufficient consideration to justify or support enforcement of a non-compete agreement. This reverses prior precedent that employer-employee agreements may be executed in exchange for merely retaining one’s job. While the case has an intricate and complex set of facts, this article focuses on the consideration requirement only, as the Kentucky Supreme Court chose not to address any other issues. More >
US Supreme Court Will Review Important Case Affecting Pregnant Workers, Part II
On Monday, details about the case Young v. UPS were discussed. Young was a part-time UPS driver who, after becoming unable to lift heavy packages due to her pregnancy, was denied her request for light duty. She alleges that UPS violated the law by failing to provide her the same accommodations as it provided to nonpregnant employees with physical disabilities who were similar in their ability to work. After the District Court and Fourth Circuit Court of Appeals both found for UPS, Young petitioned filed a petition for certiorari with the Supreme Court. UPS, however, responded to the petition with an argument that the 2008 amendments to the Americans with Disabilities Act (“ADA”) could render the case moot. The actions that led to the suit occurred in 2006 – before the amendments to the ADA were made. More >
