So after a hiatus of many years, the Department of Labor has once again begun issuing opinion letters, which are responses to a particular employer’s situation that offer guidance to all employers on specific issues under the Fair Labor Standards Act. This is quite exciting for employment law nerds like me – and one of these letters highlighted an interesting interaction between the FLSA and disability laws like the Americans with Disabilities Act and analogous state laws. (OK, I know that you’re on the edge of your seat now…) Continue Reading When the FLSA and the ADA Meet…

New York City is often on the fringe.  From its fashion to its tall buildings to its restaurants, the Big Apple likes to be cutting edge.  Even when it comes to its laws.  Really, who can forget the controversial proposed ban on “big” sugary sodas?  Fortunately, that specific attempt to regulate personal choice was ultimately stopped in its tracks.  Continue Reading New York City Proposes Right to “Ignore Your Boss” Law

On April 9, 2018, the Department of Labor announced the issuance of a Field Assistance Bulletin clarifying the recent amendments to the tip pooling provisions of the Fair Labor Standards Act, which were incorporated in the omnibus budget bill that was passed by Congress on March 21, 2018. Additionally (but without fanfare), the DOL revised its Fact Sheet #15: “Tipped Employees Under the Fair Labor Standards Act (FLSA).” The Bulletin clarifies that employers who pay the full minimum wage to tipped employees may require their participation in tip pools that include workers who are not “customarily and regularly” tipped – an issue that had been subject to significant controversy. Continue Reading DOL Provides Clarification on FLSA Tip Pooling Amendments

As a minority female, I have had my share of being harassed, and I have felt rage at the unfairness. I completely understand the desire to lash out at the harasser. But actually burning them with a cigarette? Well, that crosses the line (unless, of course, the harasser is threatening physical harm. Then, all bets – and gloves – are off!) But that’s what one employee did, and yet she was surprised when the employer fired her for it. Continue Reading Burning a Customer Is Not the Appropriate Response to Harassment

As an avid practitioner of yoga (much to my surprise – I always assumed I was too type A for inner focus and meditation), I was highly entertained by a recent case in which an employee requested to attend a yoga class as a reasonable accommodation under the Americans with Disabilities Act. Now, in my 25 years of practice as an employment attorney, I have seen many interesting requests for accommodation, but this was a new one for me. Continue Reading Yoga Is Not a Reasonable Accommodation

Practitioners of labor law know that the 5-member panel comprising the National Labor Relations Board is appointed by the President of the United States. The Board majority (three members) are from the President’s party and the remaining two members are from the other party. As the administration changes, so does the Board majority. Continue Reading Recuse Me? Why the NLRB’s Order Vacating the Hy-Brand Decision Should Not Stand

In a previous post about pet bereavement leave, I noted that the Family and Medical Leave Act does not provide leave to care for an ill or dying pet. (Because a pet is not technically a family member. Really. Despite how we pet-owners feel about our fur babies. That’s mine in the picture.) But I also said that, “if an employee becomes depressed because of the death of a pet, it is possible that this could rise to the level of a disability that would require a reasonable accommodation under the Americans with Disabilities Act, or a serious health condition for which leave must be granted under the [Family and Medical Leave Act].” I further noted, however, that most people may experience grief but not become clinically depressed as the result of a pet’s death. So my interest was piqued by a recent case in which the employee claimed that his insomnia following his dog’s death was a serious health condition under the FMLA. Continue Reading No FMLA for Pet’s Death

Apple has a new $5 billion headquarters building on its campus in Cupertino, California.  It was constructed from the imagination of iconic founder, Steve Jobs, who envisioned the structure with its glass-encased interior and exterior rings as a true “temple of design” (according to the San Francisco Chronicle).  In fact, architecture and interior design often are aspirational.  We construct spaces to reflect not who we are, but who we would like to be, to elevate us from the clutter of our messy lives to a higher plateau.  We seek feng shui – uplifting energy.  Sometimes, however, concept clashes with real life (like when I realized my amazing new master bathroom with the walk in shower and granite counters had no place to hang hand towels; my interior designer thought that towel rings would interrupt the feng shui).
Continue Reading Does Apple’s New HQ Violate OSHA?

When you are an employment lawyer, you tend to view events through a particular lens.  Recently, I had my “ADA specs” on when I read an article about a Duke University professor who, in discussing her book, “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America,” made a remark about Libertarians during a book tour.   She opined how she found it “striking … how many of the architects of this cause seem to be on the autism spectrum,”  The professor, Nancy MacLean, continued, “You know, people who don’t feel solidarity or empathy with others and who have difficult human relationships sometimes.” (You can read the story here.)  Continue Reading Along the Spectrum

The National Labor Relations Board’s Office of the General Counsel recently issued an Advice Memorandum and, although the employer and employee names are blanked out, it obviously is about James Damore and Google. Unless you have been in the wilds of Pago Pago for a year, you have heard the story of James Damore, the “Googler” (that’s what they call themselves at Google) who, in response to one too many company diversity training initiatives, prepared a memo to convey his thoughts and engage in open dialogue. Continue Reading NLRB GC Is Woke! (In more ways than one…)