A recent New York Times article highlighted the use and, frankly, abuse of Training Repayment Agreement Provisions (TRAP – oooooh, good acronym!), also known as stay-or-pay provisions. Under a TRAP, if an employee leaves their job before a certain specific amount of time has passed, they are required to pay back monies ostensibly tied to the costs of training, or finding a replacement, or even lost profits. The use of TRAPs appears to have significantly increased in recent years, and the Biden Administration is paying attention – and it is not happy.

Continue Reading “Stay-or-Pay”? A Potential TRAP for Employers!

‘Tis the season for holiday parties – and possible employer liability. But don’t be a Scrooge. The Three Wise men employers should keep some things in mind in planning holiday events for their employees.

Continue Reading Employers – Be Merry and Bright … And Thoughtful About Those Holiday Parties!

As most employers (hopefully) know, the Americans with Disabilities Act sets forth strict guidelines for when employers can require employees or applicants to undergo medical examinations or when they can ask questions that might reveal a disability. And the Genetic Information Nondiscrimination Act restricts what employers can ask about the applicant/employee’s family medical conditions. Getting this wrong can cost the employer, as a recent Equal Employment Opportunity Commission (the federal agency that enforces the ADA and other federal anti-discrimination laws) press release made clear. The EEOC gleefully announced that Dollar General agreed to settle an ADA and GINA lawsuit for $1,000,000 (!!!), based in part on illegal post-offer/pre-employment questions that were asked of applicants.

Continue Reading An Applicant’s Family Medical History? Apparently, That’s the Million Dollar Question!

Once upon a time, employees in all states but Montana (always bucking the establishment!) were presumed to be employed at-will, absent some sort of employment agreement (e.g. individual contract for a term, a collective bargaining agreement, policies that contemplate termination for cause, etc.). That means that either the employer or the employee may terminate the employment relationship at any time, for any or even no reason (as long as it’s not illegal – like, say, discrimination or retaliation). And so our well-meaning but foolish Employer is terribly excited by that principle because they want to get rid of an Employee. But … as with all good fairy tales, there is a dark side.

Continue Reading At-Will Employment Is a Fairy Tale…

On November 2, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo provided guidance to inquiries received by the NLRB in the wake of the Board’s decision in Cemex Construction Materials Pacific, LLC (which we wrote about here). In summary, the Board’s decision in Cemex established a new standard for the steps to be taken by an employer that receives a union’s demand for recognition, and the consequences facing an employer that violates the National Labor Relations Act (NLRA) after receiving a demand for recognition – specifically, the likelihood that the Board will order the employer to bargain with the union, even if the employer did not extend voluntary recognition to the union and the union did not prevail in a NLRB-administered election.

Continue Reading NLRB GC Issues Guidance Regarding Board Decision Impacting Employer Responses to Demands for Voluntary Recognition

Well I think we all recognize that Artificial Intelligence (AI) has created some seismic shifts in the way things can be done, including in the workplace (and I covered many of the risks and concerns of generative AI for employers in our June 2023 E-Update). Governments at all levels are taking action to try to put guardrails on the use of AI. And now, President Biden has signed an Executive Order on “Safe, Secure and Trustworthy Artificial Intelligence,” as summarized in a Fact Sheet. This is a wide-ranging EO, but one of the areas it specifically addresses is the impact on workers.

Continue Reading What Impact Will President Biden’s AI Executive Order Have in the Workplace?

Today, October 26, 2023, the National Labor Relations Board issued a final rule that rescinds and replaces the Trump Administration’s 2020 rule establishing the current test for determining whether two entities are joint employers. This new rule will result in more findings that two entities are joint employers. Under federal labor law, a joint employer is required to bargain with a union selected by its jointly-employed workers and may be held liable for the unfair labor practices committed by the other employer.

Continue Reading NLRB Returns to a More Expansive Joint Employer Standard

What on earth (or not) is a Lunar Sabbath, anyway? I’m sure that’s what was going through the employer’s mind when the employee requested a schedule adjustment so that she could observe her Sabbath, in a recent federal case that provides some lessons for employers on religious accommodations – an issue of particular interest following the Supreme Court’s overhaul of the religious accommodations standard earlier this year.

Continue Reading Reasonable Accommodations for a Lunar Sabbath?

Many companies blissfully believe that they don’t have to worry about the National Labor Relations Act or its enforcing agency, the National Labor Relations Board, as long as they don’t have a union and no one is currently trying to unionize them. They’re wrong. Terribly wrong. Horribly, astoundingly, insanely wrong. And ignoring an order from the Board can have serious consequences – including being taken into custody by U.S. Marshals, as the Board made very clear in a recent press release!

Continue Reading Refusing to Comply with an NLRB Order Can Land Employers in Handcuffs (Even If You’re Not Unionized)