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Second Circuit: An Internship is an Internship

September 9, 2015
Posted In Department of Labor ("DOL")

Recipients of the benefits of unpaid intern labor everywhere recoiled in horror in June of 2013 when a Federal District Court Judge in Manhattan held that unpaid interns on the set of the film “Black Swan” were protected by minimum wage and other employment laws. Since then, employers have been looking at that college kid earning “valuable work experience” by bringing them their coffee with a wary eye. Fret not, employers, for the Second Circuit has overturned the results in the “Black Swan” case (better known as Glatt, et al. v. Fox Searchlight Pictures, Inc.) while simultaneously rejecting a Department of Labor test for unpaid internships in a deft display of legal agility and coordination that can only be described as “balletic”. More >

How Much Time Can New Parents Take Off?

September 2, 2015
Posted In Department of Labor ("DOL"), Family and Medical Leave Act (“FMLA”)

Paid leave for new parents, both mothers and fathers, has been in the headlines as of late as the U.S. Department of Labor promotes its “Lead on Leave” initiative. The question for employers, however, is just how much time may an employee take off for the birth or adoption of a child. Luckily, the Family and Medical Leave Act (“FMLA”) answers the question almost entirely by itself. More >

EEOC: Title VII Prohibits Employment Discrimination Based On Sexual Orientation

August 26, 2015
Posted In Employment Discrimination Laws, Employment Non-Discrimination Act ("ENDA"), Title VII of the 1964 Civil Rights Act, U.S. Equal Employment Opportunity Commission (“EEOC”)

The recent U.S. Supreme Court decision in Obergefell v. Hodges struck down restrictions on marriage by same-sex couples, but it did not address other forms of discrimination based on sexual orientation, such as in employment. The Equal Employment Opportunity Commission, however, did not wait for a ruling from the high court, instead ruling on its own that Title VII of the Civil Rights Act of 1964 prevents discrimination in an employment context on the basis of sexual orientation. This decision, Baldwin v. Foxx,[1] broadens Title VII protections considerably, although it remains to be seen if the high court agrees with the EEOC interpretation. More >

Surprise! That Independent Contractor is an Employee!

By Cynthia L. Effinger on August 19, 2015
Posted In Department of Labor ("DOL"), Fair Labor Standards Act (FLSA), Independent Contractors

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 >

How Should Employers Provide Bathrooms for Transgender Employees? OSHA Has the Answer.

August 5, 2015
Posted In OSHA, U.S. Equal Employment Opportunity Commission (“EEOC”)

One of the great equalizing principles in life is that everyone, regardless of gender, has to use a bathroom. This leads to one of the touchier issues involving employers and transgender employees, however, as bathroom use is generally divided by gender. Should employers allow transgender employees to use the bathroom of her or his gender identity? Should employers require transgender employees to use the bathroom of his or her gender assigned at birth? Luckily, OSHA recently released guidance to help employers understand the needs of transgender persons. More >

Recap of the Webinar, "The New Overtime Rules Are Coming - Are You Ready?"

July 31, 2015
Posted In Employee Benefits, Employee Handbook, Employment Law, Human Resource Department, Overtime Pay

On  Thursday, July 30th, McBrayer hosted a webinar entitled, "The New Overtime Rules Are Coming - Are You Ready?" The webinar was hosted by attorney Cynthia L. Effinger of McBrayer's Louisville office. This well-attended drew participants eager to understand how the recently-released Department of Labor Notice of Proposed Rulemaking will affect employers throughout the state and nation. This webinar focused on the following core concepts: More >

NLRB Protects a New Kind of Employee Activity: Worrying About Your Job

By Luke A. Wingfield on July 29, 2015
Posted In National Labor Relations Act (NLRA), National Labor Relations Board (NLRB)

The National Labor Relations Board (“NLRB”) has been on a roll in recent years, protecting such employee activity as complaining on Facebook or even hitting the “Like” button. In the case of Sabo, Inc.¸ the NLRB recently ruled that letting other employees know about an open position and speculating on terminations falls within a category of concerted employee activity protected by the National Labor Relations Act (“NLRA”).[1] More >

The Obergefell Decision and Employers

July 15, 2015
Posted In Employment Discrimination Laws, ERISA, Family and Medical Leave Act (“FMLA”), Title VII of the 1964 Civil Rights Act, U.S. Equal Employment Opportunity Commission (“EEOC”)

The recent United States Supreme Court decision in Obergefell v. Hodges significantly altered the legal landscape with respect to same-sex marriages, finding that the Fourteenth Amendment to the United States Constitution requires all states to both license in-state same-sex marriages and recognize valid same-sex marriages performed out-of-state. The Court did not, however, go so far as to reach issues such as discrimination in employment or public accommodation. So, while legal same-sex marriage is the law of the land, those newly-married couples may face legal uncertainty when it comes to discrimination in public accommodations or their place of employment, unless contravening state law applies. That said, there are still several ways that the Obergefell decision and its counterpart, United States v. Windsor, will affect employers and employees. More >

Does your ADA accommodation have to be perfect, or can it just get the job done?

July 8, 2015
Posted In Americans with Disabilities Act, U.S. Equal Employment Opportunity Commission (“EEOC”)

The Americans with Disabilities Act (“ADA”) requires that employers provide “reasonable accommodations” to those with disabilities to perform the essential functions of their jobs. These accommodations cannot impose an undue hardship on the employer, however. This necessarily raises the question as to whether an accommodation must be the accommodation a disabled employee requests or if an employer may substitute an accommodation that reasonably facilitates the employee in his or her employment. The Second Circuit, in the case of Noll v. IBM, recently sided with the employer, ruling that an employee is not entitled to the “perfect” accommodation, merely a reasonable one. More >

ALERT - Department of Labor Set to Change Overtime Exemption Regulations under the FLSA

July 7, 2015
Posted In Department of Labor ("DOL"), Fair Labor Standards Act (FLSA), Overtime Pay

On July 6th, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking with the potential to affect an untold number of employers. The proposed rule, published in the Federal Register at 80 FR 38515, drastically changes the DOL’s interpretation of the Fair Labor Standards Act with respect to overtime exemptions. The current rule, put in place in 2004, exempts employees with salaries of at least $455 a week ($23,660 a year) and who perform executive, administrative, professional, outside sales and computer duties from overtime regulations. More >

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