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.

Employers beware.  A recent case serves as a reminder as we wind down the calendar year that employers should closely review their policies and procedures applying to employees paid on a 100% commission or draw basis.  In Stein v. HHGreg Stores, the United States Appeals Court for the Sixth Circuit ruled that, while a retail employer’s draw on future commissions to meet minimum wage requirements was lawful, the company policy requiring repayment for outstanding draws after an employee had been terminated was not.

Continue Reading Sixth Circuit Draws the Line: Draws on Future Commissions and Post-Termination Payback Policies

Last Friday, the Sixth Circuit Court of Appeals sitting en banc held that telecommuting up to four days a week was not a reasonable accommodation under the ADA for a disabled Ford Motor Co. employee.  The decision, EEOC v. Ford Motor Co., provided a win for employers (and a setback for the EEOC) by reversing an earlier decision issued by a divided panel of three Sixth Circuit judges, which had held that telecommuting was a reasonable accommodation for this particular employee.

Continue Reading En Banc Sixth Circuit Decision Holds That Telecommuting Was Not a Reasonable Accommodation Under the Americans with Disabilities Act for Ford Employee

This week, the Supreme Court disappointed many employers by declining to determine whether the Fair Labor Standards Act does or does not provide employees with a non-waivable substantive right to bring a collective action.  The employer in Killion v. KeHE Distributors was hoping the Supreme Court would answer that question in the negative and vacate an earlier Sixth Circuit Court of Appeals decision refusing to enforce a collective action waiver contained in a separation agreement.

Continue Reading Sixth Circuit Decision Refusing to Enforce Collective Action Waiver Included in Separation Agreement Remains Intact; Supreme Court Declines to Review

The Sixth Circuit recently held that a Michigan county agency was barred from arguing that its employee was ineligible for leave under the Family and Medical Leave Act (FMLA), because the employee relied on an inaccurate description of FMLA eligibility requirements contained in the agency’s personnel manual when he commenced the absence that led to his termination.

Continue Reading Sixth Circuit Finds Faulty Handbook Bars Employer from Challenging Employee’s Eligibility for FMLA Leave

Some employers in the health care and other industries who regularly deal with the federal government and are subject to the False Claims Act (“FCA”) have felt helpless in trying to weed out serial whistleblowers in the hiring process. After all, most anti-retaliation provisions prohibit retaliation against both employees and applicants. For example, Title VII of the Civil Rights Act of 1964 expressly prohibits retaliation against both employees and “applicants for employment.” Therefore, it is unlawful under Title VII to refuse to hire an applicant for employment because she complained about discrimination in prior jobs. A recent Sixth Circuit decision in the case of Gary Vander Boegh v Energy Solutions, Inc., has confirmed, however, that job applicants who have a history of reporting alleged FCA violations do not enjoy the same protection: employers can lawfully refuse to hire an applicant because of his prior history as an FCA whistleblower. Continue Reading Sixth Circuit Decision Confirms that Employers May Lawfully Choose Not to Hire a Job Applicant with a Prior History as a False Claims Act Whistleblower

Written by Brandon Willenberg

Employers have recently enjoyed some victories in the U.S. Supreme Court and in the California Supreme Court regarding the use of class/collective action waivers in employment arbitration agreements (e.g. Italian Colors and Iskanian). Class/collective action waivers in arbitration agreements generally prohibit the employee from forming or joining a class or collective action litigation or arbitration addressing employment-related claims against an employer, including, for example, violation of the Fair Labor Standards Act. This is an effective tool for employers to limit exposure and liability in wage/hour class and collective action litigation. So, if an employer can utilize a class/collective action waiver in an employment arbitration agreement then it makes sense that the employer can include one in a severance agreement just the same, right? Wrong said the Sixth Circuit, in Killion v. KeHE Distributors, Inc.

Continue Reading Is a FLSA Collective Action Waiver by Itself in a Severance Agreement Enforceable? Sixth Circuit Says “No.”