In my occasional series of blog posts involving I-can’t-believe-they-said-that employee excuses, here’s one that made my jaw drop.

Many of you are familiar with the Wal-Mart greeter – that friendly person at the store entrance who used to welcome shoppers with a hello and perhaps an offer of assistance. (And I say “used to” because apparently the position has been replaced by a  “customer host” position that provides more customer service and theft prevention functions throughout the store). This position, which was created by founder Sam Walton, was a large part of the company culture.  It seems obvious that the essential function of a greeter is, well, to greet customers. Which would necessarily require the greeter to actually be present in order to do so, right?


Continue Reading Extraordinary Employee Excuses: Attendance Is Not An Essential Job Function of a Greeter?

OK, I’m a bit of a nerd about the Family and Medical Leave Act (FMLA) and its regulations. And I would expect the Department of Labor to be the same. After all, they wrote the regulations! But I feel like they might have missed the boat a bit with their recent revisions to the Final Rule implementing the Families First Coronavirus Response Act (FFCRA).

Continue Reading Does the DOL Really Know Its Own FMLA Regulations?

Following last month’s federal court ruling that the U.S. Department of Labor had exceeded its authority under the Families First Coronavirus Response Act (FFCRA) in formulating certain regulatory provisions, the DOL has now issued a revised Final Rule, which becomes effective on September 16, 2020. These revisions do the following: (1) reaffirm the work-availability requirement, (2) reaffirm employer approval of intermittent leave, (3) modify the timing requirement for documentation, and (4) scale back the broad exemption for health care providers. Employers nationwide will need to make adjustments to their FFCRA procedures in accordance with the revised Final Rule.

Continue Reading DOL Revises FFCRA Final Rule: What This Means for Covered Employers

The Equal Employment Opportunity Commission updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and Other EEO Laws resource to add Q&As about employers’ authority to require testing or ask questions about COVID-19 symptoms, confidentiality of COVID-19 diagnoses, and reasonable accommodations, as well as considerations for furloughs/layoffs, treatment of older workers. Most of this guidance was provided in the EEOC’s March 27 webinar and other resources.

Continue Reading EEOC Expands COVID-19 Guidance on Testing, Medical Inquiries, Confidentiality, Accommodations, and More

Oh, the irony! The National Labor Relations Board – the federal agency charged with enforcing the National Labor Relations Act, which is the law that governs the relationship between unions and management, and includes the obligation to bargain in good faith – is being accused of failing to bargain in good faith! By its own union!

Continue Reading NLRB Is Refusing to Bargain in Good Faith with Its Own Union?

In a decision potentially impacting all employers covered by the Families First Coronavirus Response Act (FFCRA), a federal court upended some of the employer-friendly limitations set forth in the U.S. Department of Labor’s (DOL) implementing regulations (i.e. the “Final Rule”): (1) the work-availability requirement, (2) the broad exemption for health care providers, (3) employer approval of intermittent leave, and (4) the documentation requirement. Below, we first summarize the Court’s decision and then discuss the practical effect of this decision on employers.

Continue Reading Federal Court Vastly Expands FFCRA Paid Leave Mandate – What This Actually Means for Covered Employers

In light of the global racial justice movement, I know that all major (and most not-so-major) corporations are thinking about diversity, equity and inclusion right now. They are promoting DE&I initiatives in the workplace, and proudly trumpeting their activities to their workforce and the public. And that’s good, because this is an important issue. But what’s not good is when companies rush in blindly, because those anti-discrimination initiatives can (ironically) end up violating the anti-discrimination laws!

Continue Reading Hey CEOs – Be Careful About Diversity Hiring Quotas!

On July 20, 2020, the U.S. Department of Labor issued additional Q&A resources to provide guidance to employers on COVID-19-related issues under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). While much of the guidance reiterates general principles under each of these laws, they offer some interesting insights on a few issues specific to COVID-19.


Continue Reading DOL Provides COVID-19-Related Guidance on FLSA, FMLA and FFCRA

I was distracted from all things COVID by a judge in New York who defended his use of the “C” word to describe a female attorney with the explanation that he meant it as a compliment! Let’s pause for a moment, shall we? That level of twisted logic defies all rational thought. Particularly from a judge – someone we generally (and reasonably) expect to exhibit and promote appropriate behaviors (which includes not being sexist. Just saying.)

Continue Reading Let’s Be Clear – The “C” Word Is Not a Compliment