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Keeping You Posted

Recent developments in employment and labor law


Howard Kastrinsky


Chris Barrett

Keeping You Posted provides you with the latest updates in employment and labor law. As a supplement to Employment Law Comment, Keeping You Posted supplies you with a review of current federal and state cases, as well as legislative and regulatory changes, from your perspective as an employer.

Some of the many topics we discuss in Keeping You Posted include federal discrimination laws, the National Labor Relations Act, the Fair Labor Standards Act, and the Occupation Safety and Health act. Other topics include immigration and workplace privacy, including emerging trends in social media in the workplace. Add the RSS feed above to your favorites, and stay up-to-date on the issues that affect your Company.
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Breastfeeding is Protected by Title VII

Thursday, 13 June 2013 12:38


In a case of first impression, the U.S. Court of Appeals for the Fifth Circuit, covering Louisiana, Mississippi and Texas, has determined an employer may violate Title VII’s prohibition against sex discrimination by terminating a female employee because she is lactating or expressing breast milk.  Patrick Ogilvy explains the broad impact this case may have on the rest of the nation.


Assistant Manager who Spends More than 50% Doing Non-exempt Work Now Classified as Non-exempt Employee

Friday, 07 June 2013 08:58


Employers walk a fine line when mandating their exempt employees to also perform non-exempt employee duties.  Not only may the employer lose its ability to claim the exempt-employee benefit (i.e. no overtime pay), but wage & hour class action lawsuits have become rampant as of late.  The Department of Labor has addressed this issue of requiring exempt employees to double-time with non-exempt work, mandating employers to pay additional wages on top of the exempt employee’s guaranteed salary.

A department store recently tried to weasel its way out of having to pay this additional amount to its exempt employees.  Max Nuyen explains the repercussions.


No Discrimination When Age-Related Comments Made by Non-Decision Maker

Thursday, 06 June 2013 11:27


Last month, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of an employer targeted with an age discrimination lawsuit.  The suit was brought under the Age Discrimination in Employment Act (ADEA) and Michigan state discriminatory laws.  The Sixth Circuit found that a supervisor’s age-related statements allegedly made to an employee were not direct evidence of discrimination.  In making its decision, the court noted that the age-related statements were unrelated to the employee’s termination and were not made by the decision maker responsible for terminating her employment.


Keeping You Posted: June

Monday, 03 June 2013 14:59



The D.C. Circuit Court of Appeals has vacated (i.e. essentially killed) the National Labor Relations Board’s (NLRB) controversial “mandatory posting” rule which would have required approximately six million employers to post a notice advising its employees of their rights under the National Labor Relations Act (NLRA). This proposed posting rule has been looming over employers’ heads since its introduction by the NLRB, was initially scheduled to take effect back in August, 2012. In its ruling, the appellate court found that the NLRA guaranteed employers and unions the “right not to speak” and that by compelling employers to post the notice, that right was infringed upon. On its website, the NLRB has released a statement in response to this win for employers: “The DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employees rights under the [NLRB]. [. . .] There is no new deadline for the posting requirement at this time.” (emphasis added).


Essential Job Functions not Required to be Performed Regularly

Friday, 31 May 2013 14:04


If an employee comes to you claiming a disability, you are not always required to alter your work environment to accommodate that individual.  The law only requires employers to work with the disabled employee if the employee is still able to complete the “essential functions” of the job with a reasonable accommodation.  Employers find themselves in big mess when they have not clearly defined what the “essential functions” of a job are in order to definitely say “we fired Johnny because he couldn’t do the work he was required to do.”

Lee Williams writes about one company whose defense was “Johnny can’t perform the ‘essential function’ listed on his job description, and we don’t care that Johnny’s day-to-day functions never really required him to perform it, we’re firing him anyway.”


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