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.


Sixty-four employment law issues have become just two after an exciting Final Four.  Last night, while Wisconsin and Duke played each other in the NCAA championship, the Wage and Hour Collective Actions and the Retaliation Claims faced off in the ELIT championship.  Which one were you watching?  (Don’t answer that.)  Hosted this year in the Fifth Circuit down in the Big Easy, home to some of the most memorable championship games in history (North Carolina over both Georgetown (1982, MJ’s shot) and Michigan (1993, CWebb’s TO), Indiana over Syracuse (1987, Smart’s Baseline Jumper), Syracuse over Kansas (2003, Warrick’s Block), and of course Race Discrimination over Exemption Misclassification (2006, Pretext’s half-court game-winning buzzer beater)), this year’s ELIT championship game was just like the tournament generally – everything we hoped it would be and more.

And believe it or not, we finally received positive feedback about our tournament coverage.  Linda, the Head of HR at SoulReCycle, which provides customers with the privilege of paying $30 a class to furiously return soda cans to local supermarket recycling machines while an environmental education instructor blasts Top-40 hits and screams at you for seemingly no reason, left us a voicemail stating: “I don’t care what anyone says, and I don’t care that I have no idea what you are talking about; this is so great, I’m just so proud of you and I can’t wait to tell my friends all about it tonight at our canasta game.”

Okay, so that voicemail may have been from one unnamed contributor’s mother-in-law – but honestly, we are proud of ourselves too.  We had a lot of fun running this tournament over the law few weeks and we hope that our (real) readers did too.  Seriously, you haven’t lived until you’ve watched two grown employment lawyers intensely debate who would win a game between the Social Media Policies and a Hostile Work Environment if those two issues were actually real basketball teams playing in an actual real basketball game.  And the debate was no less healthy when it came to our championship matchup between Wage & Hour Collective Actions and Retaliation Claims.  So, without further ado, here is that recap (followed by an important message from our sponsors and an unforgettable rendition of One Shining Moment Lawsuit).

Continue Reading 2015 Employment Law Issues Tournament: The Championship (and the First-Ever Rendition of “One Shining Lawsuit”)


“There’s a tradition in tournament play – not to talk about the next step until you’ve climbed the one in front of you.  I’m sure writing a tournament championship blog entry is beyond your wildest dreams, so let’s just keep it right there.”  That’s a direct, completely unaltered quote from Norman Dale, Esq. in Barristers, a movie about a small town law firm that unexpectedly wins the biggest case of the year.  Alternatively, that’s a slightly-altered quote from Coach Norman Dale in Hoosiers, a movie about a small-town high school basketball team that defies the odds to win the 1952 Indiana State High School Basketball Championship.  And although we’re super excited that the finish line is near, we are going to heed Counselor Dale’s advice and focus squarely on this Final Four post.

The Final Four was spectacular – Social Media Policies battling it out against the Retaliation Claims; Non-Competition Agreements taking on Wage & Hour Collective Actions – each is an important employment law issue in its own right, but only one can call itself the most important of 2015.  These games were everything we hoped they would be and more.  Our readers, of course, vehemently disagreed.  Here now, as we inch closer to the proverbial cutting down of the nets, are two relevant reader comments.

Melvin, an Employee Relations Associate at CrossKnit, the premier high-intensity multi-stitching technique workout club in the US, wrote in to say: “What a sham.  Social Media Policies ran the weave flawlessly and threaded the needle consistently throughout the game and still lost?!?  Impossible.  I’m never reading this blog again.”  And then there was Allan, a Training and Development Manager at The Walking Thread, a local company offering walking tours of the city’s finest yarn stores.  Allan emailed us to simply say: “Unsubscribe.”  No single word hurts a blogger more than that.  Please reconsider Allan.  Please.

Okay, onto the Final Four games.

Continue Reading 2015 Employment Law Issues Tournament: Final Four Results and Recap


We’re still at it over here.  We can’t stop.  We have tons of clever basketball-employment law-related puns left in our arsenal and we expect to deploy them.  This is what our readers want and this is what we’ll give our readers until the bitter end.  Up next: The Eight Elite.  The surviving eight employment law issues duked it out over the past weekend for the opportunity to move on to the Final Four.  These games were incredible and resulted in two huge upsets.  We even scored an unheard of 71.8 Nielsen rating among the employment lawyer and HR professionals demographic, which was odd because the networks weren’t broadcasting the games.

Also odd: our reader comments.  First up we had Emily, Vice President and Employment Counsel at Gruber, an up and coming ride-sharing service that only employs(?)/engages(?) drivers that have an uncanny resemblance to Die Hard’s infamous villain, Hans Gruber.  Emily e-mailed us wondering if scientists had already named the planet we must have been on to think that No. 2 Retaliation Claims was capable of defeating the heavily-favored and No. 1 ranked Overtime.  Then we heard from Blake, a Human Capital Manager at, a legal coaching firm that focuses on helping attorneys with Chronic Verbosity Syndrome or CVS (which we hear will make an appearance in DSM-VI).  In just a 23 word e-mail, she questioned how the Wage & Hour Collective Actions could possibly win while the Wage & Hour Class Actions lost, and then she signed off: “You’ll be hearing from my lawyer.”  Yikes.  We must say, we’ve really enjoyed all of your feedback throughout the tournament.  Please keep it coming.

More coverage on the Elite Eight below.

Continue Reading 2015 Employment Law Issues Tournament: Elite Eight Results and Recaps


The Sweet Sixteen has come and gone and it was glorious.  Streamed live over our new Apple Watches, 16 employment law issues battled it out for the right to move onto the Elite Eight, which will be held next week at Sixth Circuit Stadium in Cincinnati.  The Sweet Sixteen featured some of our closest and most exciting games to date.

Before we move on though, let’s quickly recap what we’ve learned during the first two weeks of the 2015 Employment Law Issues Tournament (previous coverage of which you can access here and here).

  1. No, the Sticky Hamamuffamonut Claw™ is not actually a real pastry, but it should be, and we have made it the official sponsor of this tournament on a going forward basis.
  2. Don’t make your employment law bracket selections or confess your crimes while hot mic’d in a hotel bathroom.
  3. Our tournament bracket is not white and gold; it is white and blue, and if you can’t see that, it’s on you.
  4. And finally, never, ever, underestimate the ridiculousness of our readers’ reactions.

For example, take Stella, SVP of Talent Management at Tabimals, the first-ever tablet made exclusively for pets.  After reading our matchup analysis where the Reasonable Accommodations ran Off-the-Clock Work off the court(room), she actually emailed us a blank FMLA leave request form, told us to complete it, and then submit it to our HR department because “you all really need professional help.”  And Richard, the Chief Legal Officer at second-tier e-mail sarcasm translation service, added “you guys are like totally knocking this concept out of the park ;) #electroniceyerolls4eva.”

Thanks Stella and Richard.  Let’s move on.

Continue Reading 2015 Employment Law Issues Tournament: Sweet Sixteen Results and Recaps


If you thought the Round of 64 was wild, then wait until you see what happened during the second round.  Let’s just say that some shocking upsets left many a bracket busted wide open.

Carl, the head of operations at a well-known micro-macro brewery wrote to us after round two to say that he almost fell off a barrel of their famed Williamsburg Long-Bearded Pilsner after No. 8 Wellness Programs defeated the No. 1 seed Disability Discrimination on a buzzer beater.  And an excited Lisa, the owner of an inactivity tracker bracelet company, said that No. 13 Accrued But Unused PTO’s win over heavily-favored No. 4 Minimum Wage, while absolutely making no sense, put her squarely in front of her colleagues in the office pool – the winner of which, coincidentally, gets a free paid day off.

But the best comment we received thus far was from Tim, a pastry chef at a bakery that features the first ever Sticky Hamamuffamonut Claw™ (which is illegal in 29 states and is comprised of a sticky bun, hamantashen, muffin, cinnamon roll, doughnut and bear claw).  Tim said: “This is officially way out of control.  The Mintz ELB Team has reached a level of nerdom few have surpassed.  Kudos to you and the next round of Sticky Hamamuffamonut Claws™ are on the house.  I will be calling you on Monday to arrange for an audit of my employment practices, which your tournament has made me realize I clearly need to revisit.”

We can now say two things with certainty: First, Tim’s Sticky Hamamuffamonut Claws™ are generally delicious, and second, it’s becoming harder and harder for us to figure out which employment law issue is the most important.  But have no fear; we will follow through on our promise to answer that question as coverage of the 2015 Employment Law Issues Tournament continues below.

Continue Reading 2015 Employment Law Issues Tournament: Second Round Results and Recaps

ELB-Tourn-BracketRd1BBallThis past weekend, while college basketball teams across America finished up their conference tournaments, 64 employment law issues played in the first round of our tournament, and boy did it live up to the hype.  Filled with upsets galore and exciting finishes, employment law fans everywhere were not disappointed.

Kevin, a Human Resources professional at a Midwest-based butter sculpting company and die hard Paid Sick Leave fan even remarked: “I deal with employment madness all day, and I’ve simply never seen madness like this and it’s Awesome with a capital A baby.”  Rebecca, the General Counsel at the same company as Kevin said: “I’m really not amused by this; my entire HR department is now a lost cause for the next two weeks – thank you Mintz Levin!”  And then there was Marvin, the CFO at a second-tier nap pod manufacturer and distributor, who asked: “What is happening right now?  Seriously, someone tell me.”

We’ll tell you what is happening Marv – we are trying to figure out the most important employment law issue of the day, and while there is no real answer to this question, we thought we’d take a stab at it anyway.  And now, below, we are pleased to present you with the results from the round of 64, including some recaps of the best matchups.

Continue Reading 2015 Employment Law Issues Tournament: First Round Results and Recaps

ELB Blog TournamentFolks, this is the postest with the mostest; the entry of the century.  That’s right ladies and gentlemen, employers of all industries, it’s time for a little fun; it’s time for the 2015 Employment Law Issues Tournament, brought to you by your friends over at Mintz Levin’s Employment, Labor and Benefits practice.  We couldn’t think of a better way to help kick off the March Madness season than by creating an employment law issues bracket and picking the winners over the next few weeks.

Continue Reading 2015 Employment Law Issues Tournament: The Bracket Revealed