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Don Davis is a Practice Group Associate in the firm’s Washington DC office. He has represented clients in a wide variety of cases that have touched upon a number of issues including employment contracts, wage and hour disputes, employment discrimination, disability accommodations, wrongful discharge claims, family and medical leave, defamation, and whistleblower rights.

As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law.  Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…

Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment.  The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard.   This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018.  It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice.  While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.

On November 1, 2017 the Equal Employment Opportunity Commission (EEOC) launched its new public portal to allow individuals to quickly and directly submit inquiries and requests for intake interviews to the EEOC.  Will online access to the EEOC’s intake and inquiry process lead to an increase in discrimination charges?  While that remains to be seen, the new portal undoubtedly provides employees with faster direct access to the EEOC.

Continue Reading Will the EEOC’s New Online Complaint Filing Portal Lead to a Spike in Discrimination Complaints?

The federal courts in D.C. have long held that denial of a lateral transfer does not violate Title VII for the reason that, unlike where a promotion is denied, there is no adverse employment action when an employee is denied a purely lateral transfer. A panel of the D.C. Circuit recently decided otherwise where the employee proffered evidence that the employer’s discriminatory denial of his lateral transfer request would have an “adverse impact on the employee’s potential for career advancement.”

Continue Reading Does Denial of a Lateral Transfer Violate Title VII? In Some Cases, Yes, Says D.C. Circuit.

Beginning on January 1, 2018, New York employers will have to provide paid family leave to their employees. With less than 3 months to go, the law is already in effect in many ways and employers are strongly urged to take steps now to ensure that they are ready to roll come January 1st. This post provides an overview for employers to better understand their obligations under New York’s new Paid Family Leave law (PFL) and its accompanying regulations (which are available here and here) including implementing new policies and administering claims. Continue Reading New York Paid Family Leave Law – A Comprehensive Breakdown for Employers

In Levin v. ImpactOffice LLC, the federal court in Maryland ruled that a former employee’s claim survived a motion to dismiss where she alleged that her former employer violated the Stored Communications Act (“SCA”) when it accessed personal emails in her Google Gmail account after she surrendered her company-issued mobile phone. This case offers an important reminder to employers to think twice before accessing an employee’s personal email account – even if it’s through a company-owned device. Continue Reading Employer’s Accessing of Employee’s Personal Email Account from Company Mobile Phone May Have Violated Stored Communications Act

Last week, lawyers for the federal government told an appeals court that the Department of Labor plans to revise the currently-blocked overtime rule issued during the Obama administration last year.   But it won’t do so, it said, until the Fifth Circuit Court of Appeals confirms that it has the right to set that threshold.

Continue Reading In the Latest Episode of The Overtime Rule Soap Opera: DOL Tells Fifth Circuit It Will Revise Obama-Era Overtime Rule – But Not Just Yet

After the Eleventh Circuit denied a petition for rehearing en banc last week in Evans v. Georgia Regional Hospital, LGBT advocacy group Lambda Legal announced that it will appeal the dismissal of its client’s complaint to the United States Supreme Court.  Evans will petition the Court to hear the case and to hold that Title VII’s prohibition against sex discrimination includes a prohibition against sexual orientation discrimination.  The Seventh Circuit created a circuit split on this issue in April when a majority of its judges decided that sexual orientation discrimination is per se sex discrimination; we wrote about that decision here.

Continue Reading Eleventh Circuit Won’t Rehear Title VII Sexual Orientation Case; LGBT Advocacy Group Will Appeal to United States Supreme Court

A recent Fourth Circuit ruling in a case handled by Mintz Levin provides some comfort to employers concerned about terminating an employee who they believe has made a false complaint of discrimination. In Villa v. CaveMezze Grill, the Court ruled that an employer who fires an employee based on a good faith belief she engaged in misconduct is not liable for retaliation even if it later turns out that she had not, in fact, engaged in the misconduct. Affirming the lower court’s entry of summary judgment in a unanimous published opinion, the court opined that the employer could not be liable for retaliation because it lacked a retaliatory motive when it terminated a former employee. That is because the employer did not terminate the employee in retaliation for reporting the alleged harassment, but rather because it genuinely – albeit mistakenly – believed she had fabricated the report.

Continue Reading Fourth Circuit Holds Complaining Employee is not Protected From Termination if the Employer Terminates Her Because It Believed Her Complaint was Fabricated

Congress adopted the Family and Medical Leave Act of 1993 (“FMLA”) to provide job security for employees who must miss work due to their own serious health condition, the birth of their children, to care for family members suffering from a serious health condition or for reasons related to their family members’ military service. One of the most vexing issues for employers trying to comply with the FMLA is “intermittent” or “reduced-schedule” leave.

Continue Reading Intermittent Leave Under the FMLA – The Basics