The Employment Law Counselor

This episode of The Employment Law Counselor podcast, in collaboration with the Professional Liability Underwriting Society (PLUS), dives into recent executive orders which end Federal DEI programs and, among other things, encourage private sector employees to end “illegal DEI” programs. Victoria Fuller, Partner and Co-Chair of Labor and Employment Practice Group, and Laura Corvo, Counsel, are joined by Marlena Ellis, Associate, to discuss the implications of those executive orders on employers and offer some best practices employers should implement promptly to ... Continue Reading

The newest episode of The Employment Law Counselor Podcast, hosted by Jeff Stewart, Counsel, and Tanya Salgado, Partner, covers the topic of violence in the workplace and potential claims that employers face surrounding these incidents. The discussion covers the steps that employers can take when conducting their background checks, ban the box laws, understanding the laws in your jurisdiction, and policies employers should have in place that address workplace violence.Continue Reading

This episode of The Employment Law Counselor Hosted by Jeff Stewart in collaboration with the Professional Liability Underwriting Society (PLUS), features guest John Baker, Director of Labor Relations, Del Lago Resort and Casino. In advance of the upcoming presidential election, Jeff and John discuss what restrictions employers can put in place about discussing politics in the workplace, what protections employees have and how some political discussions can lead to liability under discrimination statutes.

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In the newest episode of The Employment Law Counselor, in collaboration with the Professional Liability Underwriting Society, Scott Casher, Partner and Co-Chair, Labor and Employment Practice Group, joins host Jeffrey Stewart for a discussion on what the future holds for Non-Compete Agreements in the United States after the ban proposed by the FTC. Jeff and Scott briefly discuss the history of non-competes in the country, the details of the proposed, the potential challenges that have already been filed, and how employers should respond.

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In the newest episode of The Employment Law Counselor in collaboration with the Professional Liability Underwriting Society, Jeff is joined by Tanya Salgado, Partner, to discuss how religious discrimination and religious harassment claims are expected to rise dramatically in the next year. With religious protests around the country being a topic of discussion in the workplace, it is imperative for employers to understand what constitutes religious discrimination and religious harassment, as well as to train supervisors to handle these issues.

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In the newest episode of The Employment Law Counselor, in collaboration with the Professional Liability Underwriting Society, Laura Corvo, Counsel, joins host Jeff Stewart for a discussion of AI in the workplace and the potential liabilities employers face. Jeff and Laura cover AI in the hiring process, recent laws trying to address it and how employers are utilizing the tool. They also talk about the importance of employers having a policy to provide guidance for AI usage in the workplace.

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On Friday, March 8, 2024, the Eastern District of Texas halted a new National Labor Relations Board (NLRB) joint-employer rule that would have taken effect on March 11, 2024. The new Joint-Employer Rule would have implemented a more relaxed standard under which indirect—and even unexercised—control over another employer’s employees could qualify an employer as a “joint employer” with respect to application of the National Labor Relations Act (NLRA). If the new Joint-Employer Rule had gone into effect, it would have brought significantly more employers within the reach of the NLRA and the oversight of the NLRB.

In Chamber of Commerce of the United States et al. v. National Labor Relations Board et al., No. 6:23-cv-00553 (E.D. Tex. Mar. 8, 2024), the Chamber of Commerce and other entities sued the NLRB to enjoin the implementation of the new rule as unlawful on the grounds that it was contrary to common law and was arbitrary and capricious. The Court agreed and held that the rule could not take effect.Continue Reading

In this episode, host Jeff Stewart sits down with Tom Hams, Managing Director, National EPLI
Practice Leader at Aon, to discuss all things EPLI in The Employment Law Counselor podcast.
Among the topics covered are recent nuclear verdicts, attacks on DEI initiatives and wage and
hour lawsuits. Jeff and Tom also preview the upcoming Professional Liability Underwriting
Society EPLI Symposium.

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In the newest episode of The Employment Law Counselor collaboration with Professional Liability Underwriting Society, Jeff Stewart sits down with Chris Williams from Travelers to understand how insurers underwrite EPLI policies, including what information they need, what factors they look at most, and even what industries they may stay away from.  In addition, Chris and Jeff preview PLUS’s upcoming EPLI symposium.

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With the New Year here, new laws, rules and regulations are now in effect that may impact your company’s business. While finalizing employee handbook revisions and preparing for the year ahead, employers should consider the following:

State Minimum Wage Changes

The federal minimum wage ($7.25/hour) has not changed in over a decade, but state and local laws pertaining to minimum wage rates are constantly changing. Employers should consider reviewing applicable minimum wage laws in their jurisdiction and evaluate their workforce (standard/seasonal/tipped/minor workers, etc.) to determine employee rate of pay.Continue Reading

In the newest episode of The Employment Law Counselor collaboration with Professional Liability Underwriting Society, Jeff Stewart interviews Mitch Terk, Vice President of Claims for Nexus Specialty, to explore how insurers and panel counsel work together.  They have an insightful discussion on how an insurance company selects and assigns panel counsel, building relationships, and avoiding surprises as a matter progresses through litigation.

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In this episode of the Employment Law Counselor, hosted by Jeff Stewart in collaboration with
Professional Liability Underwriting Society, Jeff is joined by Nancy Conrad, Managing Partner,
Lehigh Valley Office, for a discussion about how a new lawsuit is assessed and handled in the
first days after receiving the case. They look at how different parties – a business, an attorney
and an insurance company – work together to gather information and create an initial plan.

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On August 8, 2023, the New Jersey Department of Labor and Workforce Development (DOL) implemented the Workplace Accountability in Labor List (the WALL) — a public list, accessible through the DOL website, that includes the names of employers found to be in violation of New Jersey State wage, benefit and tax laws and have outstanding liabilities to the DOL. Such liabilities might include unpaid wages or unemployment insurance contributions to the State.

Employers may appear on the WALL following a final order or judgment issued by the DOL. The DOL will issue its final order or ... Continue Reading

In Tufts Medical Center v. Dalexis et. al., the Massachusetts Appeals Court held that a hospital employer failed to engage in the interactive process, and discriminated against and constructively discharged a disabled nurse by failing to excuse her from the obligation to work overtime when needed.

The nurse was diagnosed with rheumatoid arthritis and interstitial lung disease, causing her to experience stiffness, lack of energy, difficulty breathing, pain in her lungs and an inability to run or climb stairs. In 2007, the hospital excused her from working overtime as a temporary ... Continue Reading

In Chapoteau, et al. v. Bella Sante, Inc., et al., the Massachusetts Appeals Court held that operators of beauty and massage spas that primarily render beauty and massage services were required to pay employees Sunday premium pay where the spas also sold retail products on Sundays.

Prior to January 1, 2023, Massachusetts law generally prohibited commercial activities on Sunday, but provided numerous exemptions, including for the operation of businesses that provided beauty and massage therapy services. Another exemption allowed businesses to sell retail goods on Sundays ... Continue Reading

Documents are important for employers and supervisors to obtain and control the narrative to avoid litigation in layoffs or terminations. In many cases, documentation will stop a claim before it starts.  In the newest episode of the Employment Law Counselor hosted by Jeff Stewart in collaboration with Professional Liability Underwriting Society, Laura Corvo, attorney at White and Williams, joins Jeff for a discussion on documentation and how employers can create effective documents before problems arise.

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On August 16, 2023, the Court of Appeals for the Third Circuit clarified the test courts should use when determining whether workplace uniforms or safety gear are integral and indispensable to an employee's principal activities of employment, and therefore, whether time spent donning and doffing should be compensable under the federal Fair Labor Standards Act (FLSA).Tyger v. Precision Drilling Corp., No. 22-1613, __ F.4th __ (3d Cir., August 16, 2023). The court reversed the District Court for the Middle District of Pennsylvania, which had relied on the Second Circuit’s ... Continue Reading

On August 30, 2023, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking that would affect certain exemptions with respect to the Fair Labor Standards Act (FLSA) minimum wage and overtime requirements.

Under the FLSA, employees who are not specifically exempt, must receive pay for hours worked in excess of 40 hours in a workweek at a rate not less than one and one-half their regular rate of pay. The proposed rule substantially revises the salary threshold applicable to executive, administrative, and professional (EAP) employees, as well as “highly ... Continue Reading

In the newest episode of the Employment Law Counselor hosted by Jeff Stewart in collaboration with Professional Liability Underwriting Society, John Baker, Attorney, joins the chat titled “Retaliation Claims are on the Rise. Jeff and John cover various instances of retaliation complaints and provisions, while also presenting examples of protected activity of employees and adverse employment actions and consequences.

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On July 3, 2023, the Chica Project, African Community Economic Development of New England (ACEDONE), and Greater Boston Latino Network (GBLN) (collectively the “Complainants”) filed a civil rights Complaint with the Department of Education alleging that Harvard College’s (“Harvard”) continued use of “Donor and Legacy Preferences” violates Title VI of the Civil Rights Act of 1964 (“Title VI”). The Complainants argue that the Donor and Legacy admission preferences are not necessary to achieve an important educational goal and have a “significant” ... Continue Reading

The EEOC is responsible for administering a number of employment laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and others. Those statutes require potential plaintiffs to file a charge with the EEOC (or state equivalent) before going to court and filing a lawsuit.

Each year, the EEOC releases statistics on all of the charges it receives. Given that lawsuits are generally filed a year after the EEOC charge is filed, these statistics provide an insight into areas that employers will be ... Continue Reading

On June 12, a federal jury in Camden, New Jersey returned a verdict in favor of Shannon Phillips, a white Starbucks Regional Director who claimed that she was terminated from her management level position on the basis of her race. Phillips claimed that after media coverage of the arrests of two black customers who were sitting in a Philadelphia Starbucks store, she was directed to suspend a white District Manager with no connection to the Philadelphia store, based on alleged discriminatory conduct. Phillips claimed that she informed Starbucks supervisors that the race-based ... Continue Reading

Listen now to the newest episode of The Employment Law Counselor, Hosted by Jeff Stewart in collaboration with the Professional Liability Underwriting Society. Two new laws – the PUMP Act and the Pregnancy Worker Fairness Act – have recently been passed and put new requirements on employers.  In this episode, host Jeff Stewart is joined by Tanya Salgado, and they dive into what employers must do to comply with these new laws and what policies will need to be updated.

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On December 29, 2022, President Biden signed the PUMP for Nursing Mothers Act and Pregnant Workers Fairness Act (“PWFA” or “Act”) into law. The PWFA requires “covered employers” to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

The Act applies only to accommodations, and does not replace federal, state, or local laws that provide greater protections to workers affected by pregnancy, childbirth ... Continue Reading

Listen now to hear the newest episode of The Employment Law Counselor, Hosted by Jeff Stewart in collaboration with the Professional Liability Underwriting Society. Partner Ryan Warden joins Jeff to discuss the recent explosion in wage and hour claims over the past few years in this week's episode titled "Wage Claims Are On The Rise, But Are They Covered?" Jeff and Ryan cover common issues, including minimum wage violations, unpaid overtime claims and wage and hour class actions.

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The Employment Law Counselor hosted by Jeff Stewart is launching the first episode of its new season in collaboration with Professional Liability Underwriting Society. In this episode, Partner Jeff Stewart is joined by Jim Anelli, Partner and Chair of the Labor and Employment Group at White and Williams, for a conversation diving into how companies can avoid liability in layoff situations.

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The Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standard (ETS) regulations on November 4, 2021, that will affect most employers in the United States. In brief, by December 5, 2021, all unvaccinated employees of businesses with 100 or more employees (the calculation is firm/corporate level, NOT per location) must wear masks indoors (including in a vehicle with another person for work purposes). By January 4, 2022, all businesses with 100 or more employees must ensure employees are fully vaccinated or subject to regular testing at least weekly (which can be at the employee’s own expense, though collective bargaining agreements may require employers to pay for such tests). The new regulations are expected to cover more than 80 million employees.Continue Reading

One of the more challenging issues for employers seeking to roll out mandatory COVID-19 vaccination policies has been the administration of requests for religious accommodations. Just before the new OSHA Emergency Temporary Standard regarding mandatory COVID-19 vaccination or weekly testing was announced, the EEOC issued a new update to its Technical Assistance on COVID-19 that provides guidance and assistance on the thorny issue of religious accommodations to mandatory COVID-19 vaccination requirements.Continue Reading

Employers are getting desperate to find employees, so much so that they are foregoing some of the requirements that they used to have for positions. In some cases, instead of seeking applicants with past experience, employers are training new hires.Continue Reading

New Jersey’s Law Against Discrimination (LAD) prohibits employers from unlawfully discriminating against employees based on, among other things, their race, color, national origin, nationality, ancestry, disability, national origin, sex and age. The LAD is also quite broad in its application in comparison to federal protections against discrimination (e.g., the LAD applies to all employers while Title VII of the Civil Rights Act is only applicable to employers with 15 or more employees). On October 5, 2021, Governor Murphy signed legislation providing increased protections for employees 70 years old or older.Continue Reading

Last month, the EEOC filed a first of its kind lawsuit in federal court in Georgia based on an employer’s denial of an accommodation request to work from home. In the suit, the employee, a former health and safety manager at a facility services company, alleged that at the start of the pandemic, she requested to work from home as an accommodation for her chronic obstructive lung disease and hypertension. Shortly after her request, the company directed its employees to work from home four days per week. In June 2020, the company required that all staff to return to in-person work at the facility five days per week.Continue Reading

On September 18, 2021, the Center for Disease Control and Prevention (CDC) issued updated guidelines for Quarantine and Isolation (Guidance) with respect to the COVID-19 virus. For purposes of the Guidance, “quarantine” is the appropriate response if a person may have been exposed to the virus, while “isolation” is the response for a person infected with the virus, even with no symptoms. With the expected issuance of workplace guidelines (and governmental mandates usually based on CDC Guidance) keeping informed of the changes and updates will be critical for employers as employees return to office workspace.Continue Reading

Ever since the 2020 presidential election last November, we have forecasted what a President Biden-appointed National Labor Relations Board (NLRB) and General Counsel would mean for our employer clients. For example, the NLRB stated in an August opinion that it was willing to “explore new make-whole remedies.” In near lock step with the NLRB, General Counsel Jennifer Abruzzo recently revealed her playbook in the form of General Counsel Memorandum 21-06, which spells trouble for employers who are charged with unfair labor practices by an employee or a union.Continue Reading

Minimum wage just broke another record today. It will break another tomorrow.

Did you know that the federal minimum wage has not been increased in over 12 years? Every day without an increase sets another record for the longest period of time without an increase in the federal minimum wage since the first minimum wage was enacted in 1938.Continue Reading

New York City has taken a sweeping approach to help contain the spread of the Delta variant through its “Key to NYC” program, becoming the first U.S. city to do so. With enforcement of "Key to NYC" to begin on September 13, 2021, employers in New York City should begin to make the necessary adjustments to ensure they are in full compliance with the mandate. While the program was announced earlier this month, a new order, Executive Order No. 226, was recently issued by Mayor Bill de Blasio on August 20^th, which superseded some provisions of Executive Order No. 225, issued on August 16^th.Continue Reading

This month, the Pennsylvania Superior Court held as a matter of first impression that medical marijuana users may maintain a private action under the Pennsylvania Medical Marijuana Act (MMA). The case is Scranton Quincy Clinic Company, LLC, et al. v. Pamela Palmiter, Case No. 498 MDA 2020 (Pa. Super. Ct. Aug. 5, 2021).

Plaintiff Palmiter was terminated from her job for failing a drug test, despite informing the laboratory that she was prescribed medical marijuana and providing a copy of her medical marijuana certification. She subsequently sued her former employer, asserting ... Continue Reading